International Law

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Al-Aziz v. Commander of IDF Forces in the West Bank

Case/docket number:

HCJ 785/87

Date Decided:

Sunday, April 10, 1988

Decision Type:

Original

Topics:

International Law

Customary humanitarian law

Laws of war

Occupied territories

Abstract:

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

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

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

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

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

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Levin, Shlomo

majority opinion

Goldberg, Eliezer

majority opinion

Ben-Porat, Miriam

Author

concurrence

Bach, Gavriel

Author

concurrence

Full text of the opinion:

HCJ 785/87

HCJ 845/87

HCJ 27/88

ABD AL NASSER AL AZIZ ABD AL AZIZ ABD AL

AFFO ET AL

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

H.C. 785/87

ABD AL AZIZ ABD ALRACHMAN UDE RAFIA ET AL

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

H.C. 845/87

J'MAL SHAATI HINDI

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

SAMARIA REGION

H.C. 27/88

The Supreme Court sitting as the High Court of Justice

[April 10, 1988]

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

Editor's synopsis -

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

Israel cases referred to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

American case referred to:

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

English cases referred to:

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

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

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

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

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

International cases referred to:

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

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

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

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

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

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

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

JUDGMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) Principles of interpretation applicable to international conventions;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Emphasis added M.S.)

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

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

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

(Emphasis added - M.S.)

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

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

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

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

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

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

31. General rule of interpretation

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

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

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

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

32. Supplementary means of interpretation

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

(a) leaves the meaning ambiguous or obscure; or

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

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

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

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

(Emphasis added - M.S.)

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

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

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

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

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

(Emphasis added - M. S.)

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

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

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

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

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

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

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

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

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

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

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

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

The relevant portions of the Article state:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Emphasis added - M.S.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Emphasis added - M.S.)

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

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

(Emphasis added - M.S.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let us examine the subject in the above order.

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

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

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

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

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

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

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

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

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

the hall-marks of general assent and reciprocity.

These too are accepted indicators of customary international law.

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

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

And further at p. 1831:

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

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

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

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

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

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

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

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

And, at p. 437:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And in footnote (x):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And at p. 45:

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

And at p. 45:

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

(Emphasis added - M.S.)

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

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

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

(Emphasis added - M.S.)

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

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

And in note 28 he adds:

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

(Emphasis added - M. S.)

Similarly see McNair and Watts, supra, at 371.

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

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

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

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

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

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

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

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

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

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

(Emphasis added - M.S.)

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

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

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

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

(Emphasis added - M.S.)

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

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

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

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

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

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

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

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

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

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

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

The court further stated at p. 374:

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

Ajuri v. IDF Commander in West Bank

Case/docket number:

HCJ 7015/02

Date Decided:

Tuesday, September 3, 2002

Decision Type:

Original

Topics:

Constitutional Law

State of Emergency and National Security

International Law

Treaties

Abstract:

Facts: The IDF Commander in Judaea and Samaria made orders requiring three residents of Judaea and Samaria to live, for the next two years, in the Gaza Strip. The orders were approved by the Appeals Board. The three residents of Judaea and Samaria petitioned the High Court of Justice against the orders.

The petitioners argued that the orders were contrary to international law. In particular the petitioners argued that Judaea and Samaria should be regarded as a different belligerent occupation from the one in the Gaza Strip, and therefore the orders amounted to a deportation from one territory to another, which is forbidden under international law (art. 49 of the Fourth Geneva Convention).

The respondents, in reply, argued that the orders complied with international law. The respondents argued that the belligerent occupation of Judaea, Samaria and the Gaza Strip should be considered as one territory, and therefore the orders amounted merely to assigned residence, which is permitted under international law (art. 78 of the Fourth Geneva Convention).

A further question that arose was whether the IDF commander could consider the factor of deterring others when making an order of assigned residence against any person.

Held: Article 78 of the Fourth Geneva Convention empowers an occupying power to assign the place of residence of an individual for imperative reasons of security. Assigned residence is a harsh measure only to be used in extreme cases. However, the current security situation in which hundreds of civilians have been killed by suicide bombers justifies the use of the measure in appropriate cases.

Judaea and Samaria and the Gaza Strip are effectively one territory subject to one belligerent occupation by one occupying power, and they are regarded as one entity by all concerned, as can be seen, inter alia, from the Israeli-Palestinian interim agreements. Consequently, ordering a resident of Judaea and Samaria to live in the Gaza Strip amounts to assigned residence permitted under art. 78 of the Fourth Geneva Convention, and not to a deportation forbidden under art. 49 of the Fourth Geneva Convention.

An order of assigned residence can be made against a person only if there is a reasonable possibility that the person himself presents a real danger to the security of the area. If he does not, considerations of deterring others are insufficient for making an order of assigned residence. But if such a danger does exist, the IDF commander is authorized to make an order of assigned residence, and he may consider the deterrent factor in deciding whether actually to make the order or not.

The Appeals Board found that the petitioner in HCJ 7019/02 had sewn explosive belts. The Appeals Board found that the first petitioner in HCJ 7015/02 had acted as a lookout for a terrorist group when they moved explosive charges. In both these cases, the Supreme Court held that the deeds of the petitioners justified assigned residence, and it upheld the orders. However, with regard to the second petitioner in HCJ 7015/02, the Appeals Board found only that he had given his brother, a wanted terrorist, food and clothes, and had driven him in his car and lent him his car, without knowing for what purpose his brother needed to be driven or to borrow his car. The Supreme Court held that the activities of the second petitioner were insufficient to justify the measure of assigned residence, and it set aside the order of assigned residence against him.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

majority opinion

majority opinion

majority opinion

majority opinion

Strasberg-Cohen, Tova

majority opinion

Dorner, Dalia

majority opinion

Beinisch, Dorit

majority opinion

Turkel, Jacob

majority opinion

Full text of the opinion:

HCJ 7015/02

1. Kipah Mahmad Ahmed Ajuri

2. Abed Alnasser Mustafa Ahmed Asida

3. Centre for the Defence of the Individual

1. IDF Commander in West Bank

2. IDF Commander in Gaza Strip

3. Bridget Kessler

HCJ 7019/02

1. Amtassar Muhammed Ahmed Ajuri

2. Centre for the Defence of the Individual

3. Association for Civil Rights in Israel

1. IDF Commander in Judaea and Samaria

2. IDF Commander in Gaza Strip

3. Bridget Kessler

The Supreme Court sitting as the High Court of Justice

[3 September 2002]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, T. Strasberg-Cohen, D. Dorner, Y. Türkel, D. Beinisch

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

A further question that arose was whether the IDF commander could consider the factor of deterring others when making an order of assigned residence against any person.

HCJ 7019/02 — petition denied.

HCJ 7015/02 — petition of the first petitioner denied; petition of the second petitioner granted.

Legislation cited:

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

Security Provisions (Judaea and Samaria) Order (no. 378), 5730-1970, ss. 84(a), 84A, 86, 86(b)(1), 86(e), 86(f).

Security Provisions (Judaea and Samaria) (Amendment no. 84) Order (no. 510), 5762-2002.

Security Provisions (Gaza Strip) (Amendment no. 87) Order (no. 1155), 5762-2002.

International conventions cited:

Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949, arts. 49, 78.

Fourth Hague Convention respecting the Laws and Customs of War on Land, 1907.

Israeli Supreme Court cases cited:

[1] HCJ 2936/02 Doctors for Human Rights v. IDF Commander in West Bank IsrSC 56(3) 3.

[2] HCJ 2117/02 Doctors for Human Rights v. IDF Commander in West Bank IsrSC 56(3) 28.

[3] HCJ 3451/02 Almadani v. Minister of Defence IsrSC 56(3) 30.

[4] HCJ 393/82 Almashulia v. IDF Commander in Judaea and Samaria IsrSC 37(4) 785.

[5] HCJ 102/82 Zemel v. Minister of Defence IsrSC 37(3) 365.

[6] HCJ 574/82 El Nawar v. Minister of Defence (unreported).

[7] HCJ 615/85 Abu Satiha v. IDF Commander (unreported).

[8] HCJ 785/87 Abed El-Apu v. IDF Commander in West Bank IsrSC 42(2) 4.

[9] HCJ 7709/95 Sitrin v. IDF Commander in Judaea and Samaria (not reported).

[10] HCJ 1361/91 Mesalem v. IDF Commander in Gaza Strip IsrSC 45(3) 444.

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

[12] HCJ 814/88 Nasralla v. IDF Commander in West Bank IsrSC 43(2) 265.

[13] HCJ 2006/97 Janimat v. Central Commander IsrSC 51(2) 651.

[14] CrimApp 4920/02 Federman v. State of Israel (unreported).

[15] CrimFH 7048/97 A v. Minister of Defence IsrSC 54(1) 721.

[16] HCJ 159/94 Shahin v. IDF Commander in Gaza Strip IsrSC 39(1) 309.

[17] HCJ 8259/96 Association for Protection of Jewish Civil Rights v. IDF Commander in Judaea and Samaria (unreported).

[18] HCJ 253/88 Sejadia v. Minister of Defence IsrSC 43(3) 801.

[19] HCJ 5667/91 Jabrin v. IDF Commander in Judaea and Samaria IsrSC 46(1) 858.

[20] HCJ 5510/92 Turkeman v. Minister of Defence IsrSC 42(1) 217.

[21] HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria IsrSC 50(1) 353.

[22] HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport IsrSC 49(5) 1.

[23] HCJ 3643/97 Stamka v. Minister of Interior IsrSC 53(2) 730.

[24] HCJ 4644/00 Jaffora Tavori v. Second Television and Radio Authority IsrSC 54(4) 178.

[25] HCJ 4915/00 Communications and Productions Co. Network (1988) v. Government of Israel IsrSC 54(5) 451.

[26] HCJ 1030/99 Oron v. Knesset Speaker (not yet reported).

[27] HCJ 3114/02 Barake v. Minister of Defence IsrSC 56(3) 11.

[28] HCJ 680/88 Schnitzer v. Chief Military Censor IsrSC 42(4) 617; IsrSJ 9 77.

[29] HCJ 619/78 ‘Altaliya’ Weekly v. Minister of Defence IsrSC 33(3) 505.

[30] HCJ 4541/94 Miller v. Minister of Defence IsrSC 49(4) 94.

[31] HCJ 1005/89 Agga v. IDF Commander in Gaza Strip IsrSC 44(1) 536.

[32] HCJ 24/91 Rahman v. IDF Commander in Gaza Strip IsrSC 45(2) 325.

[33] HCJ 2630/90 Sarachra v. IDF Commander in Judaea and Samaria (unreported).

[34] HCJ 168/91 Morcos v. Minister of Defence IsrSC 45(1) 467.

[35] HCJ 2161/96 Sharif v. Home Guard Commander IsrSC 50(4) 485.

[36] HCJ 390/79 Dawikat v. Government of Israel IsrSC 34(1) 1.

English cases cited:

[37] Liversidge v. Anderson [1941] 3 All ER 338.

Jewish Law sources cited:

[38] Deuteronomy 24, 16.

For the petitioners in HCJ 7015/02 — L. Zemel, Y. Wolfson.

For the petitioners in HCJ 7019/02 — D. Yakir, M. Hazan.

For respondents 1-2 in both petitions — A. Helman, S. Nitzan

JUDGMENT

President A. Barak

The military commander of the Israel Defence Forces in Judaea and Samaria made an ‘order assigning place of residence’. According to the provisions of the order, the petitioners, who are residents of Judaea and Samaria, were required to live for the next two years in the Gaza Strip. Was the military commander authorized to make the order assigning place of residence? Did the commander exercise his discretion lawfully? These are the main questions that arise in the petitions before us.

Background

1. Since the end of September 2000, fierce fighting has been taking place in Judaea, Samaria and the Gaza Strip. This is not police activity. It is an armed struggle. Within this framework, approximately 14,000 attacks have been made against the life, person and property of innocent Israeli citizens and residents, the elderly, children, men and women. More than six hundred citizens and residents of the State of Israel have been killed. More than 4,500 have been wounded, some most seriously. The Palestinians have also experienced death and injury. Many of them have been killed and wounded since September 2000. Moreover, in one month alone — March 2002 — 120 Israelis were killed in attacks and hundreds were wounded. Since March 2002, as of the time of writing this judgment, 318 Israelis have been killed and more than 1,500 have been wounded. Bereavement and pain overwhelm us.

2. Israel’s fight is complex. The Palestinians use, inter alia, guided human bombs. These suicide bombers reach every place where Israelis are to be found (within the boundaries of the State of Israel and in the Jewish villages in Judaea and Samaria and the Gaza Strip). They sew destruction and spill blood in the cities and towns. Indeed, the forces fighting against Israel are terrorists; they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including in holy sites; they are supported by part of the civilian population, and by their families and relatives. The State of Israel faces a new and difficult reality, as it fights for its security and the security of its citizens. This reality has found its way to this court on several occasions (see HCJ 2936/02 Doctors for Human Rights v. IDF Commander in West Bank [1]; HCJ 2117/02 Doctors for Human Rights v. IDF Commander in West Bank [2]; HCJ 3451/02 Almadani v. Minister of Defence [3], at p. 36).

3. In its struggle against terrorism, Israel has undertaken — by virtue of its right of self-defence — special military operations (Operation ‘Protective Wall’ which began in March 2002 and Operation ‘Determined Path’ which began in June 2002 and has not yet ended). The purpose of the operations was to destroy the Palestinian terrorism infrastructure and to prevent further terrorist attacks. In these operations, IDF forces entered many areas that were in the past under its control by virtue of belligerent occupation and which were transferred pursuant to agreements to the (full or partial) control of the Palestinian Authority. The army imposed curfews and closures on various areas. Weapons and explosives were rounded up. Suspects were arrested. Within the framework of these operations, many reserve forces were mobilized; heavy weapons, including tanks, armoured personnel carriers, assault helicopters and aeroplanes, were used.

4. The special military operations did not provide an adequate response to the immediate need to stop the grave terrorist acts. The Ministerial Committee for National Security sought to adopt several other measures that were intended to prevent further terrorist acts from being perpetrated, and to deter potential attackers from carrying out their acts. The opinion of the Attorney-General was sought; in his opinion of 19 July 2002, the Attorney-General determined the legal parameters for the actions of the security forces. Consequently, the Ministerial Committee for National Security met on 31 July 2002 and decided to adopt additional measures, in accordance with the criteria laid down by the Attorney-General.

5. One of the measures upon which the Ministerial Committee for National Security decided — all of which within the framework of the Attorney-General’s opinion — was assigning the place of residence of family members of suicide bombers or the perpetrators of serious attacks and those sending them from Judaea and Samaria to the Gaza Strip, provided that these family members were themselves involved in the terrorist activity. This measure was adopted because, according to the evaluation of the professionals involved (the army, the General Security Service, the Institute for Intelligence and Special Tasks (the Mossad), and the police), these additional measures might make a significant contribution to the struggle against the wave of terror, resulting in the saving of human life. This contribution is two-fold: first, it can prevent a family member involved in terrorist activity from perpetrating his scheme (the preventative effect); second, it may deter other terrorists — who are instructed to act as human bombs or to carry out other terror attacks — from perpetrating their schemes (the deterrent effect).

The Amending Order assigning place of residence

6. In order to give effect to the new policy, on 1 August 2002 the military commander of the IDF forces in Judaea and Samaria amended the Security Provisions (Judaea and Samaria) Order (no. 378), 5730-1970 (hereafter — the Original Order). This Order determined provisions, inter alia, with regard to special supervision (s. 86). These allow instructions to be given that a person should be placed under special supervision. According to the provisions of the Original Order, no authority should be exercised thereunder unless the military commander is of the opinion ‘that it is imperative for decisive security reasons’ (s. 84(a)). An order of special supervision may be appealed before the Appeals Board (s. 86(e)). The Appeals Board is appointed by the local commander. The chairman of the Appeals Board is a judge who is a jurist. The Board’s role is to consider the order made under this section and to make recommendations to the military commander. If a person appeals an order and the order is upheld, the Appeals Board will consider his case at least once every six months whether that person submitted a further appeal or not (s. 86(f)). The application of the Original Order was limited to Judaea and Samaria. The amendment that was made extended its application to the Gaza Strip as well (the Security Provisions (Judaea and Samaria) (Amendment no. 84) Order (no. 510), 5762-2002 (hereafter — the Amending Order)). The provisions of the Amending Order (s. 86(b)(1) after the amendment) provide:

‘Special supervision and assigning a place of residence’

a. A military commander may direct in an order that a person shall be subject to special supervision.

b. A person subject to special supervision under this section shall be subject to all or some of the following restrictions, as the military commander shall direct:

(1) He shall be required to live within the bounds of a certain place in Judaea and Samaria or in the Gaza Strip, as specified by the military commander in the order.’

In the introduction to the Amending Order it is stated that is was made ‘in view of the extraordinary security conditions currently prevailing in Judaea and Samaria, and because reasons of security in Judaea and Samaria and public security so require, and because of the need to contend with acts of terror and their perpetrators’. It was also stated in the introduction that the order was made ‘after I obtained the consent of the IDF military commander in the Gaza Strip’. Indeed, in conjunction with the Amending Order, the IDF commander in the Gaza Strip issued the Security Provisions (Gaza Strip) (Amendment no. 87) Order (no. 1155), 5762-2002. Section 86(g) of this order provided that:

‘Someone with regard to whom an order has been made by the military commander in Judaea and Samaria under section 86(b)(1) of the Security Provisions (Judaea and Samaria) Order (no. 378), 5730-1970, within the framework of which it was provided that he will be required to live in a specific place in the Gaza Strip, shall not be entitled to leave that place as long as the order is in force, unless the military commander in Judaea and Samaria or the military commander in the Gaza Strip so allow.’

Under the Amending Order, orders were made assigning the place of residence of the three petitioners before us. Let us now turn to these orders and the circumstances in which they were made.

The proceedings before the military commander and the Appeals Board

7. On 1 August 2002, the IDF commander in Judaea and Samaria (hereafter — the Respondent) signed orders assigning the place of residence of each of the petitioners. These orders state that they were made under the Amending Order and after obtaining the consent of the IDF commander in the Gaza Strip. They also state that they were made because the Respondent is of the opinion that ‘they are essential for decisive security reasons, and because of the need to contend with acts of terror and their perpetrators’. These orders require each of the petitioners to live in the Gaza Strip. The orders state that they will remain valid for a period of two years. The orders further state that they may be appealed to the Appeals Board. Underlying each of the orders are facts — which we will consider below — according to which each of the petitioners was involved in assisting terrorist activity that resulted in human casualties. In the opinion of the Respondent, assigning the place of residence of the petitioners to the Gaza Strip will avert any danger from them and deter others from committing serious acts of terror. The petitioners appealed the orders before the Appeals Board. A separate hearing was held with regard to the case of each of the petitioners, before two Appeals Boards. Each of the Boards held several days of hearings. The Boards decided on 12 August 2002 to recommend to the Respondent that he approve the validity of the orders. The Respondent studied the decision of the Boards and decided on the same day that the orders would remain valid. On 13 August 2002, the petitions before us were submitted against the Respondent’s decision.

The proceedings before us

8. When the petitions were submitted before us, a show-cause order was issued on the same day in both petitions. An interim order was also issued, which prevented the forcible assignment of the place of residence of the petitioners to the Gaza Strip until further decision. When the State’s response was received, a hearing was held on 19 August 2002 before a panel of three justices. The panel decided to hear the two petitions together. It also decided to grant the petitioners’ application to submit two opinions by international law experts on the subject of the petitions, one by Prof. Schabas and the other by Ms Doswald-Beck and Dr Seiderman. Finally it decided to expand the panel. The panel was indeed expanded in accordance with that decision, and on 26 August 2002 a hearing was held at which arguments were heard from the parties.

9. Counsel for the petitioners argued before us that the Amending Order, the individual orders issued thereunder and the decisions of the Appeals Boards should be set aside, for several reasons. First, there were defects in the proceedings that took place before the Respondent and the Appeals Board (in HCJ 7015/02). Second, there was an inadequate factual basis for the decisions of the respondents and there was no justification for the harsh measure ordered against them — especially when its purpose was merely deterrence. Third, the Amending Order was made without authority, because the Respondent was not competent to make an order concerning the Gaza Strip. Finally — and this argument was the focus of the hearing before us — the Amending Order is void because it is contrary to international law. Counsel for the Respondent argued before us that the petitions should be denied. According to him, the Amending Order, and the individual orders made thereunder, are proper and they and the proceeding in which they were made are untainted by any defect. The respondent was competent to make the Amending Order, and the individual orders are lawful, since they are intended to prevent the petitioners from realizing the danger that they present, and they contain a deterrent to others. The orders are proportionate. They are lawfully based on the factual basis that was presented to the commander and the Appeals Boards. According to counsel for the Respondent, the Amending Order and the orders made thereunder conform to international law, since they fall within the scope of article 78 of the Fourth Geneva Convention of 1949 (Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, 1949; hereafter — the Fourth Geneva Convention).

10. Before the hearing began, Mrs Bridget Kessler made an application to be joined as a respondent to the petitions. We granted the application. Mrs Bridget Kessler is the mother of Gila Sara Kessler, of blessed memory, who was murdered in the terrorist attack on 19 June 2002 at the French Hill crossroads in Jerusalem. The attack was perpetrated by a suicide bomber who blew himself up near a bus stop. The explosion killed seven Jews including Mrs Kessler’s nineteen-year-old daughter, who merely wanted to go home from work. Mrs Kessler spoke before us quietly and evocatively. She regarded herself as the representative of all those who were harmed by the terrorist attacks that have befallen us. She emphasized the moral aspect in assigning the residence of the petitioners to the Gaza Strip, and supported the position of counsel for the Respondent. Another applicant asked to be joined as a respondent, but he did not trouble to come on the date fixed, and his application was denied without any consideration of it on the merits.

11. In the course of their arguments, counsel for the petitioners applied to submit before us affidavits of the petitioners. These affidavits were unsigned. The purpose of submitting them was to declare their position with regard to their personal circumstances. We dismissed this application both because of the procedural defects in the affidavits and also because they contained nothing that added anything to the actual arguments of the petitioners. At the end of the arguments of counsel for the Respondent, he asked us to hear General Ashkenazi, the Deputy Chief-of-Staff, with regard to the security background that was the basis for the Respondent’s decision. We denied this application. Our position is that the security position was presented in full before the Appeals Boards that gave expression to it, and there was no reason for an extension of this framework.

12. As we have seen, the arguments before us concern various aspects of the decision of the Respondent and the Appeals Board. We should state at the outset that we found no basis to the arguments about procedural defects in the decision of the Respondent or in the decisions of the Appeals Boards. We do not think that in the proceedings that took place before the Boards (mainly in the case of the petitioners in HCJ 7015/02) there were defects that justify setting aside the proceeding or its conclusions. The same is true of the arguments regarding prejudice on the part of the Board; not being given a full opportunity to be heard; prima facie ignoring factual and legal arguments and the Board hearing the Respondent’s witnesses; this is also the case with regard to not hearing certain witnesses or cross-examining them and allowing the Respondent to submit material. We have studied these arguments, the decisions of the Board and the material before us. We are satisfied — for the reasons stated in the State’s reply — that the proceeding that took place was duly held and it does not justify our intervention in this framework, and that the defects that occurred — according to the petitioners — do not justify in themselves setting aside the decisions that were made, either by the Boards or by the commander. Indeed, the main matters on which the parties concentrated their arguments — and on which we too will focus — concern the following three questions: first, was the military commander competent, under the provisions of international law, to make the Amending Order? This question concerns the authority of a military commander under international law to make arrangements with regard to assigning a place of residence. Second, if the answer to the first question is yes, what are the conditions required by international law for assigning a place of residence? This question concerns the scope of the military commander’s discretion under international law in so far as assigning a place of residence is concerned. Third, do the conditions required by international law for making the orders to assign a place of residence exist in the case of the petitioners before us? This question concerns the consideration of the specific case of the petitioners before us in accordance with the laws that govern their case. Let us now turn to consider these questions in their proper order.

The authority of the military commander to assign a place of residence

13. Is the military commander of a territory under belligerent occupation competent to determine that a resident of the territory shall be removed from his place of residence and assigned to another place of residence in that territory? It was argued before us that the military commander does not have that authority, if only for the reason that this is a forcible transfer and deportation that are prohibited under international law (article 49 of the Fourth Geneva Convention). Our premise is that in order to answer the question of the military commander’s authority, it is insufficient to determine merely that the Amending Order (or any other order of the commander of the territory) gives the military commander the authority to assign the place of residence of a resident of the territory. The reason for this is that the authority of the military commander to enact the Amending Order derives from the laws of belligerent occupation. They are the source of his authority, and his power will be determined accordingly. I discussed this in one case, where I said:

‘From a legal viewpoint the source for the authority and the power of the military commander in a territory subject to belligerent occupation is in the rules of public international law relating to belligerent occupation (occupatio bellica), and which constitute a part of the laws of war’ (HCJ 393/82 Almashulia v. IDF Commander in Judaea and Samaria [4], at p. 793).

In this respect, I would like to make the following two remarks: first, all the parties before us assumed that in the circumstances currently prevailing in the territory under the control of the IDF, the laws of international law concerning belligerent occupation apply (see, in this regard, HCJ 102/82 Zemel v. Minister of Defence [5], at p. 373; HCJ 574/82 El Nawar v. Minister of Defence [6]; HCJ 615/85 Abu Satiha v. IDF Commander [7]); second, the rules of international law that apply in the territory are the customary laws (such as the appendix to the (Fourth) Hague Convention respecting the Laws and Customs of War on Land of 1907, which is commonly regarded as customary law; hereafter — the Fourth Hague Convention). With regard to the Fourth Geneva Convention, counsel for the Respondent reargued before us the position of the State of Israel that this convention — which in his opinion does not reflect customary law — does not apply to Judaea and Samaria. Notwithstanding, Mr Nitzan told us — in accordance with the long-established practice of the Government of Israel (see M. Shamgar, ‘The Observance of International Law in the Administered Territories’, 1 Isr. Y. H. R. 1971, 262) — that the Government of Israel decided to act in accordance with the humanitarian parts of the Fourth Geneva Convention. In view of this declaration, we do not need to examine the legal arguments concerning this matter, which are not simple, and we may leave these to be decided at a later date. It follows that for the purpose of the petitions before us we are assuming that humanitarian international law — as reflected in the Fourth Geneva Convention (including article 78) and certainly the Fourth Hague Convention — applies in our case. We should add that alongside the rules of international law that apply in our case, the fundamental principles of Israeli administrative law, such as the rules of natural justice, also apply. Indeed, every Israeli soldier carries in his pack both the rules of international law and also the basic principles of Israeli administrative law that are relevant to the issue. Therefore the question remains: is the military commander competent under the rules of belligerent occupation to determine provisions regarding the forcible assigned residence of a person from his place of residence to another place in the territory under his control?

14. The fundamental premise is that the displacement of a person from his place of residence and his forcible assignment to another place seriously harms his dignity, his liberty and his property. A person’s home is not merely a roof over his head, but it is also a means for the physical and social location of a person, his private life and his social relationships (see M. Stavropoulou, ‘The Right not to be Displaced’, 9 Am. U. J. Int’l L. & Pol’y, 1994, at pp. 689, 717). Several basic human rights are harmed as a result of an involuntary displacement of a person from his home and his residence being assigned to another place, even if this assigned residence does not involve him crossing an international border (see F. M. Deng, Internally Displaced Persons: Compilation and Analysis of Legal Norms, 1998, 14). These human rights derive in part from the internal law of the various countries, and are in part enshrined in the norms of international law.

15. The rights of a person to his dignity, his liberty and his property are not absolute rights. They are relative rights. They may be restricted in order to uphold the rights of others, or the goals of society. Indeed, human rights are not the rights of a person on a desert island. They are the rights of a person as a part of society. Therefore they may be restricted in order to uphold similar rights of other members of society. They may be restricted in order to further proper social goals which will in turn further human rights themselves. Indeed, human rights and the restriction thereof derive from a common source, which concerns the right of a person in a democracy.

16. The extent of the restriction on human rights as a result of the forcible assignment of a person’s residence from one place to another varies in accordance with the reasons that underlie the assigned residence. Assigned residence caused by combat activities (whether because of an international dispute or because of a civil war) cannot be compared to assigned residence caused by a disaster (whether natural or of human origin) (see R. Cohen and F. M. Deng, Masses in Flight: the Global Crisis of Internal Displacement, 1998). In the case before us, we are concerned with the assigned residence of a person from his place of residence to another place in the same territory for security reasons in an area subject to belligerent occupation. The extent of the permitted restriction on human rights is determined, therefore, by the humanitarian laws contained in the laws concerning armed conflict (see D. Fleck ed., The Handbook of Humanitarian Law in Armed Conflict, 1995). These laws are mainly enshrined in the Fourth Hague Convention and the Fourth Geneva Convention. We will now turn to these laws.

17. We were referred to various provisions in the Fourth Hague Convention (mainly article 43) and in the Fourth Geneva Convention (mainly articles 49 and 78). In our opinion, the case before us is governed entirely by the provisions of article 78 of the Fourth Geneva Convention:

‘Article 78

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. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.

Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.’

This provision concerns assigned residence. It constitutes a special provision of law (lex specialis) to which we must refer and on the basis of which we must determine the legal problems before us. Whatever is prohibited thereunder is forbidden even if a general provision may prima facie be interpreted as allowing it, and what is permitted thereunder is allowed even if a general provision may prima facie be interpreted as prohibiting it (see J. Stone, No Place, No Law in the Middle East 1969, at p. 17). Indeed, a study of the Amending Order itself and the individual orders made thereunder shows that the maker of the Order took account of the provisions of article 78 of the Convention, and acted accordingly when he made the Amending Order and the individual orders. The Respondent did not seek, therefore, to make a forcible transfer or to deport any of the residents of the territory. The Respondent acted within the framework of ‘assigned residence’ (according to the provisions of article 78 of the Fourth Geneva Convention). Therefore we did not see any reason to examine the scope of application of article 49 of the Fourth Geneva Convention, which prohibits a forcible transfer or a deportation. In any event, we see no need to consider the criticism that the petitioners raised with regard to the ruling of this court, as reflected in several decisions, the main one being HCJ 785/87 Abed El-Apu v. IDF Commander in West Bank [8], with regard to the interpretation of article 49 of the Fourth Geneva Convention. We can leave this matter to be decided at a later date.

18. Article 78 of the Fourth Geneva Convention does not deal with a forcible transfer or deportation. It provides a comprehensive and full arrangement with regard to all aspects of assigned residence and internment of protected persons. This provision integrates with several other provisions in the Fourth Geneva Convention (arts. 41, 42 and 43) that also discuss internment and assigned residence. When the place of residence of a protected person is assigned from one place to another under the provisions of art. 78 of the Fourth Geneva Convention, it is a lawful act of the military commander, and it does not constitute a violation of human rights protected by humanitarian international law. Indeed, art. 78 of the Fourth Geneva Convention constitutes both a source for the protection of the right of a person whose residence is being assigned and also a source for the possibility of restricting this right. This can be seen, inter alia, in the provisions of art. 78 of the Fourth Geneva Convention that determines that the measures stipulated therein are the measures that the occupying power (i.e., the military commander) may ‘at most’ carry out.

The conditions for exercising the authority of the military commander with regard to assigned residence

19. Article 78 of the Fourth Geneva Convention stipulates several (objective and subjective) conditions with which the military commander must comply, if he wishes to assign the place of residence of a person who is protected by the Convention. We do not need, for the purposes of the petitions before us, to consider all of these conditions. Thus, for example, art. 78 of the Fourth Geneva Convention stipulates an objective condition that a regular procedure for exercising the authority must be prescribed; this procedure shall include a right of appeal; decisions regarding assigned residence shall be subject to periodic review, if possible every six months. These provisions were upheld in the case before us, and they are not the subject of our consideration. We should add that under the provisions of art. 78 of the Fourth Geneva Convention, someone whose place of residence was assigned ‘shall enjoy the full benefit of article 39 of the present convention’. We have been informed by counsel for the Respondent, in the course of oral argument, that if in the circumstances of the case before us the Respondent is subject to duties imposed under the provisions of art. 39 of the Convention, he will fulfil these duties. Two main arguments were raised before us with regard to the conditions stipulated in art. 78 of the Fourth Geneva Convention. Let us consider these. The first argument raised before us is that art. 78 of the Fourth Geneva Convention refers to assigned residence within the territory subject to belligerent occupation. This article does not apply when the assigned residence is in a place outside the territory. The petitioners argue that assigning their residence from Judaea and Samaria to the Gaza Strip is removing them from the territory. Consequently, the precondition for the application of art. 78 of the Fourth Geneva Convention does not apply. The petitioners further argue that in such circumstances the provisions of art. 49 of the Fourth Geneva Convention apply, according to which the deportation of the petitioners is prohibited. The second argument raised before us concerns the factors that the military commander may take into account in exercising his authority under the provisions of art. 78. According to this argument, the military commander may take into account considerations that concern the danger posed by the resident and the prevention of that danger by assigning his place of residence (preventative factors). The military commander may not take into account considerations of deterring others (deterrent factors). Let us consider each of these arguments.

Assigned residence within the territory subject to belligerent occupation

20. It is accepted by all concerned that art. 78 of the Fourth Geneva Convention allows assigned residence, provided that the new place of residence is in the territory subject to belligerent occupation that contains the place of residence from which the person was removed. The provisions of art. 78 of the Fourth Geneva Convention do not apply, therefore, to the transfer of protected persons outside the territory held under belligerent occupation. This is discussed by J. S. Pictet in his commentary to the provisions of art. 78 of the Fourth Geneva Convention:

‘… the protected persons concerned… can therefore only be interned, or placed in assigned residence, within the frontiers of the occupied country itself’ (J. S. Pictet, Commentary: Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1958, at p. 368).

It was argued before us that the Gaza Strip — to which the military commander of Judaea and Samaria wishes to assign the place of residence of the petitioners — is situated outside the territory.

21. This argument is interesting. According to it, Judaea and Samaria were conquered from Jordan that annexed them — contrary to international law — to the Hashemite Kingdom, and ruled them until the Six Day War. By contrast, the Gaza Strip was conquered from Egypt, which held it until the Six Day War without annexing the territory to Egypt. We therefore have two separate areas subject to separate belligerent occupations by two different military commanders in such a way that neither can make an order with regard to the other territory. According to this argument, these two military commanders act admittedly on behalf of one occupying power, but this does not make them into one territory.

22. This argument must be rejected. The two areas are part of mandatory Palestine. They are subject to a belligerent occupation by the State of Israel. From a social and political viewpoint, the two areas are conceived by all concerned as one territorial unit, and the legislation of the military commander in them is identical in content. Thus, for example, our attention was drawn by counsel for the Respondent to the provisions of clause 11 of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, which says:

‘The two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which shall be preserved during the interim agreement.’

This provision is repeated also in clause 31(8) of the agreement, according to which the ‘safe passage’ mechanisms between the area of Judaea and Samaria and the area of the Gaza Strip were determined. Similarly, although this agreement is not decisive on the issue under discussion, it does indicate that the two areas are considered as one territory held by the State of Israel under belligerent occupation. Moreover, counsel for the Respondent pointed out to us that ‘not only does the State of Israel administer the two areas in a coordinated fashion, but the Palestinian side also regards the two areas as one entity, and the leadership of these two areas is a combined one’. Indeed, the purpose underlying the provisions of art. 78 of the Fourth Geneva Convention and which restricts the validity of assigned residence to one territory lies in the societal, linguistic, cultural, social and political unity of the territory, out of a desire to restrict the harm caused by assigning residence to a foreign place. In view of this purpose, the area of Judaea and Samaria and the area of the Gaza Strip should not be regarded as territories foreign to one another, but they should be regarded as one territory. In this territory there are two military commanders who act on behalf of a single occupying power. Consequently, one military commander is competent to assign the place of residence of a protected person outside his area, and the other military commander is competent to agree to receive that protected person into the area under his jurisdiction. The result is, therefore, that the provisions of art. 78 of the Fourth Geneva Convention does apply in our case. Therefore there is no reason to consider the provisions of art. 49 of that Convention.

The considerations of the area commander

23. The main question that arose in this case — and to which most of the arguments were devoted — concerns the scope of the discretion that may be exercised by the occupying power under the provisions of art. 78 of the Fourth Geneva Convention. This discretion must be considered on two levels: one level — which we shall consider immediately — concerns the factual considerations that the military commander should take into account in exercising his authority under the provisions of art. 78 of the Fourth Geneva Convention. The other level — which we shall consider later — concerns the applicability of the considerations that the military commander must take into account to the circumstances of the cases of each of the petitioners before us.

24. With regard to the first level, it is accepted by all the parties before us — and this is also our opinion — that an essential condition for being able to assign the place of residence of a person under art. 78 of the Fourth Geneva Convention is that the person himself constitutes a danger, and that assigning his place of residence will aid in averting that danger. It follows that the basis for exercising the discretion for assigning residence is the consideration of preventing a danger presented by a person whose place of residence is being assigned. The place of residence of an innocent person who does not himself present a danger may not be assigned, merely because assigning his place of residence will deter others. Likewise, one may not assign the place of residence of a person who is not innocent and did carry out acts that harmed security, when in the circumstances of the case he no longer presents any danger. Therefore, if someone carried out terrorist acts, and assigning his residence will reduce the danger that he presents, it is possible to assign his place of residence. One may not assign the place of residence of an innocent family member who did not collaborate with anyone, or of a family member who is not innocent but does not present a danger to the area. This is the case even if assigning the place of residence of a family member may deter other terrorists from carrying out acts of terror. This conclusion is required by the outlook of the Fourth Geneva Convention that regards the measures of internment and assigned residence as the most severe and serious measures that an occupying power may adopt against protected residents (see Pictet, ibid., at p. 257). Therefore these measures may be adopted only in extreme and exceptional cases. Pictet rightly says that:

‘In occupied territories the internment of protected persons should be even more exceptional than it is inside the territory of the Parties to the conflict; for in the former case the question of nationality does not arise. That is why Article 78 speaks of imperative reasons of security; there can be no question of taking collective measures: each case must be decided separately… their exceptional character must be preserved’ (ibid., at pp. 367, 368).

He adds that it is permitted to adopt a measure of assigned residence only towards persons whom the occupying power ‘considers dangerous to its security’ (ibid., at p. 368). This approach — which derives from the provisions of the Convention — was adopted by this court in the past. We have held repeatedly that the measures of administrative internment — which is the measure considered by art. 78 of the Fourth Geneva Convention together with assigned residence — may be adopted only in the case of a ‘danger presented by the acts of the petitioner to the security of the area’ (HCJ 7709/95 Sitrin v. IDF Commander in Judaea and Samaria [9]; see also HCJ 1361/91 Mesalem v. IDF Commander in Gaza Strip [10] at p. 456; HCJ 554/81 Beransa v. Central Commander [11] at p. 250). In one case Justice Bach said:

‘The respondent may not use this sanction of making deportation orders merely for the purpose of deterring others. Such an order is legitimate only if the person making the order is convinced that the person designated for deportation constitutes a danger to the security of the area, and that this measure seems to him essential for the purpose of neutralizing this danger’ (HCJ 814/88 Nasralla v. IDF Commander in West Bank [12], at p. 271).

This conclusion is implied also by the construction of the Amending Order itself, from which it can be seen that one may only adopt a measure of assigned residence on account of a danger presented by the person himself. But beyond all this, this conclusion is required by our Jewish and democratic values. From our Jewish heritage we have learned that ‘Fathers shall not be put to death because of their sons, and sons shall not be put to death because of their fathers; a person shall be put to death for his own wrongdoing’ (Deuteronomy 24, 16 [38]). ‘Each person shall be liable for his own crime and each person shall be put to death for his own wrongdoing’ (per Justice M. Cheshin in HCJ 2006/97 Janimat v. Central Commander [13], at p. 654); ‘each person shall be arrested for his own wrongdoing — and not for the wrongdoing of others’ (per Justice Y. Türkel in CrimApp 4920/02 Federman v. State of Israel [14]). The character of the State of Israel as a democratic, freedom-seeking and liberty-seeking State implies that one may not assign the place of residence of a person unless that person himself, by his own deeds, constitutes a danger to the security of the State (cf. CrimFH 7048/97 A v. Minister of Defence [15], at p. 741). It should be noted that the purpose of assigned residence is not penal. Its purpose is prevention. It is not designed to punish the person whose place of residence is assigned. It is designed to prevent him from continuing to constitute a security danger. This was discussed by President Shamgar, who said:

‘The authority is preventative, i.e., it is prospective and may not be exercised unless it is necessary to prevent an anticipated danger… The authority may not be exercised… unless the evidence brought before the military commander indicates a danger that is anticipated from the petitioner in the future, unless the measures designed to restrict his activity and prevent a substantial part of the harm anticipated from him are adopted’ (Beransa v. Central Commander [11], at p. 249; see also Abu Satiha v. IDF Commander [7]).

Of course, we are aware that assigning the residence of a person who constitutes a danger to the security of the State is likely to harm his family members who are innocent of any crime. That is not the purpose of assigned residence, although it may be its consequence. This is inevitable, if we wish to maintain the effectiveness of this measure (cf. Janimat v. Central Commander [13], at p. 653).

25. What is the level of danger that justifies assigning a person’s place of residence, and what is the likelihood thereof? The answer is that any degree of danger is insufficient. In view of the special nature of this measure, it may usually only be exercised if there exists administrative evidence that — even if inadmissible in a court of law — shows clearly and convincingly that if the measure of assigned residence is not adopted, there is a reasonable possibility that he will present a real danger of harm to the security of the territory (see Pictet, at p. 258, and the examples given by him, and also HCJ 159/94 Shahin v. IDF Commander in Gaza Strip [16]; Sitrin v. IDF Commander in Judaea and Samaria [9]; HCJ 8259/96 Association for Protection of Jewish Civil Rights v. IDF Commander in Judaea and Samaria [17]; HCJ 253/88 Sejadia v. Minister of Defence [18], at p. 821). Moreover, just as with any other measure, the measure of assigned residence must be exercised proportionately. ‘There must be an objective relationship — a proper relativity or proportionality — between the forbidden act of the individual and the measures adopted by the Government’ (HCJ 5667/91 Jabrin v. IDF Commander in Judaea and Samaria [19], at p. 860; see also HCJ 5510/92 Turkeman v. Minister of Defence [20], at p. 219). An appropriate relationship must exist between the purpose of preventing danger from the person whose place of residence is being assigned and the danger that he would present if this measure were not exercised against him (see HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [21], 364); the measure adopted must be the one that causes less harm; and it is usually necessary that the measure of assigned residence is proportionate to the benefit deriving from it in ensuring the security of the territory (cf. HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [22]; HCJ 3643/97 Stamka v. Minister of Interior [23]; HCJ 4644/00 Jaffora Tavori v. Second Television and Radio Authority [24]; HCJ 4915/00 Communications and Productions Co. Network (1988) v. Government of Israel IsrSC 54(5) 451 [25]; HCJ 1030/99 Oron v. Knesset Speaker (not yet reported) [26]).

26. Within the framework of proportionality we should consider two further matters that were discussed by President Shamgar in a case that concerned the administrative internment of residents from Judaea and Samaria, where he said:

‘The internment is designed to prevent and frustrate a security danger that arises from the acts that the internee may perpetrate and which may not reasonably be prevented by adopting regular legal measures (a criminal proceeding) or by an administrative measure that is less severe from the viewpoint of its consequences (for the purpose of reaching conclusions from past acts with regard to future danger)’ (Sejadia v. Minister of Defence [18], at p. 821).

These remarks are also relevant to the issue of assigned residence. Therefore each case must be examined to see whether filing a criminal indictment will not prevent the danger that the assigned residence is designed to prevent. Moreover, the measure of assigned residence — as discussed in art. 78 of the Fourth Geneva Convention — is generally a less serious measure than the measure of internment. This matter must be considered in each case on its merits, in the spirit of Pictet’s remarks that:

‘Internment is the more severe… as it generally implies an obligation to live in a camp with other internees. It must not be forgotten, however, that the terms “assigned residence” and “internment” may be differently interpreted in the law of different countries. As a general rule, assigned residence is a less serious measure than internment’ (ibid., at p. 256).

27. May the military commander, when making a decision about assigned residence, take into account considerations of deterring others? As we have seen, what underlies the measure of assigned residence is the danger presented by the person himself if his place of residence is not assigned, and deterring that person himself by assigning his place of residence. The military commander may not, therefore, adopt a measure of assigned residence merely as a deterrent to others. Notwithstanding, when assigning a place of residence is justified because a person is dangerous, and the question is merely whether to exercise this authority, there is no defect in the military commander taking into account considerations of deterring others. Thus, for example, this consideration may be taken into account in choosing between internment and assigned residence. This approach strikes a proper balance between the essential condition that the person himself presents a danger — which assigned residence is designed to prevent — and the essential need to protect the security of the territory. It is entirely consistent with the approach of the Fourth Geneva Convention, which regards assigned residence as a legitimate mechanism for protecting the security of the territory. It is required by the harsh reality in which the State of Israel and the territory are situated, in that they are exposed to an inhuman phenomenon of ‘human bombs’ that is engulfing the area.

28. Before we conclude the examination in principle as to the conditions prescribed by art. 78 of the Fourth Geneva Convention, we ought to point out once again that the occupying power may make use of the measure of assigned residence if it ‘considers it necessary, for imperative reasons of security’. A similar test appears in the Amending Order — which, without doubt, sought to comply with the requirements of the Fourth Geneva Convention and the Fourth Hague Convention — according to which the military commander may adopt the measure of assigned residence ‘if he is of the opinion that it is essential for decisive security reasons’ (s. 84A of the Amending Order). These provisions give the military commander broad discretion. He must decide whether decisive security reasons — or imperative reasons of security — justify assigned residence. In discussing this, Pictet said:

‘It did not seem possible to define the expression “security of the State” in a more concrete fashion. It is thus left very largely to Governments to decide the measure of activity prejudicial to the internal or external security of the State which justifies internment or assigned residence’ (ibid., at p. 257).

Note that the considerations that the military commander may take into account are not merely ‘military’ reasons (see, for example, arts. 5, 16, 18, 53, 55, 83 and 143 of the Fourth Geneva Convention). Article 78 of the Fourth Geneva Convention extends the kind of reasons to ‘reasons of security’ (see, for example, arts. 9, 42, 62, 63, 64 and 74 of the Fourth Geneva Convention). Indeed, the Fourth Geneva Convention clearly distinguishes between ‘imperative reasons of security’ and ‘imperative military reasons’. The concept of reasons of security is broader than the concept of military reasons.

29. The discretion of the military commander to order assigned residence is broad. But it is not absolute discretion. The military commander must exercise his discretion within the framework of the conditions that we have established in this judgment and as prescribed in art. 78 of the Fourth Geneva Convention and the Amending Order. The military commander may not, for example, order assigned residence for an innocent person who is not involved in any activity that harms the security of the State and who does not present any danger, even if the military commander is of the opinion that this is essential for decisive reasons of security. He also may not do so for a person involved in activity that harms the security of the State, if that person no longer presents any danger that assigned residence is designed to prevent. Indeed, the military commander who wishes to make use of the provisions of art. 78 of the Fourth Geneva Convention must act within the framework of the parameters set out in that article. These parameters create a ‘zone’ of situations — a kind of ‘zone of reasonableness’ — within which the military commander may act. He may not deviate from them.

30. The Supreme Court, when sitting as the High Court of Justice, exercises judicial review over the legality of the discretion exercised by the military commander. In doing so, the premise guiding this court is that the military commander and those carrying out his orders are public officials carrying out a public office according to law (Almashulia v. IDF Commander in Judaea and Samaria [4], at p. 809). In exercising this judicial review, we do not appoint ourselves as experts in security matters. We do not replace the security considerations of the military commander with our own security considerations. We do not adopt any position with regard to the manner in which security matters are conducted (cf. HCJ 3114/02 Barake v. Minister of Defence [27], at p. 16). Our role is to ensure that boundaries are not crossed and that the conditions that restrict the discretion of the military commander are upheld (see HCJ 680/88 Schnitzer v. Chief Military Censor IsrSC 42(4) 617 [28], at p. 640). This was well expressed by Justice Shamgar in one case that considered the extent of judicial review of the considerations of the military commander in Judaea and Samaria:

‘The respondents’ exercising of their powers will be examined according to criteria applied by this court when it exercises judicial review of an act or omission of any other branch of the executive, but this of course while taking into account the duties of the respondents as required by the nature of their function’ (HCJ 619/78 ‘Altaliya’ Weekly v. Minister of Defence [29], at p. 512).

Admittedly, ‘security of the State’ is not a ‘magic word’ that prevents judicial review (see the remarks of Justice Strasberg-Cohen in HCJ 4541/94 Miller v. Minister of Defence [30], at p. 124). Nonetheless, ‘an act of State and an act of war do not change their nature even if they are subject to judicial review, and the character of the acts, in the nature of things sets its seal on the means of intervention’ (per Justice M. Cheshin in Sabiah v. IDF Commander in Judaea and Samaria [21], at p. 369). Therefore we will not be deterred from exercising review of the decisions of the military commander under art. 78 of the Fourth Geneva Convention and the Amending Order merely because of the important security aspects on which the commander’s decision is based. Notwithstanding, we will not replace the discretion of the military commander with our discretion. We will consider the legality of the military commander’s discretion and whether his decisions fall into the ‘zone of reasonableness’ determined by the relevant legal norms that apply to the case. This was discussed — in the context of exercising r. 119 of the Defence (Emergency) Regulations, 1945, in the Gaza Strip — by President Shamgar, who said:

‘But it should be understood that the court does not put itself in the shoes of the military authority making the decision… in order to replace the discretion of the commander with the discretion of the court. It considers the question whether, in view of all the facts, the use of the said measure lies within the scope of the measures that may be regarded, in the circumstances of the case, as reasonable, taking into account the acts of those involved in the activity that harms the security of the area whose case is being considered by the court’ (HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [31], at p. 539).

Thus, for example, we are not prepared to intervene in the decision of the Respondent that assigned residence constitutes an important mechanism for ensuring security in the territory. In this matter the petitioners argued before us that this measure is ineffective. This argument was considered in detail by the Appeals Boards, and they rejected it. Before us the Respondent presented the general picture in its entirety, and he gave examples of cases in which serious terrorist activity was prevented by taking account of considerations such as that of assigned residence. In such circumstances, we will not replace the discretion of the Respondent with our own discretion (see HCJ 24/91 Rahman v. IDF Commander in Gaza Strip [32], at p. 335; Janimat v. Central Commander [13], at p. 655). Against this background, we will now turn to consider the specific cases that are before us. The Respondent assigned the place of residence of the three petitioners before us. Let us therefore consider the case of each petitioner.

From the general to the specific

Amtassar Muhammed Ahmed Ajuri (HCJ 7019/02)

31. Amtassar Muhammed Ahmed Ajuri (an unmarried woman aged 34) is the sister of the terrorist Ahmed Ali Ajuri. Much terrorist activity is attributed to the brother, Ahmed Ali Ajuri, including sending suicide bombers with explosive belts, and responsibility, inter alia, for the terrorist attack at the Central Bus Station in Tel-Aviv in which five people were killed and many others were injured. The Appeals Board (chaired by Col. Gordon), in its decision of 12 August 2002, held — on the basis of privileged material presented to it and on the basis of testimonies of members of the General Security Service — that the petitioner directly and substantially aided the unlawful activity of her brother, which was intended to harm innocent citizens. The Board determined that there was more than a basis for the conclusion that the petitioner knew about the forbidden activity of her brother — including his being wanted by the Israeli security forces — and that she knew that her brother was wounded when he was engaged in preparing explosives, and prima facie she also knew that her brother was armed and had hidden in the family apartment an assault rifle. It was also held that the petitioner aided her brother by sewing an explosive belt. The Board pointed out that, on the basis of privileged evidence, which it found ‘reliable and up-to-date’, it transpired that the petitioner indeed aided her brother in his unlawful activity. It held that this was a case of ‘direct and material aid in the preparation of an explosive belt, and the grave significance and implications of this aid were without doubt clear and known [to the petitioner]’. Admittedly, the petitioner testified before the Board that she was not involved in anything and did not aid her brother, but the Board rejected this testimony as unreliable. It pointed out that ‘we found her disingenuous and evasive story totally unreasonable throughout her testimony before us, and it was clear that she wished to distance herself in any way possible from the activity of her brother… her disingenuous story left us with a clear impression of someone who has something to hide and this impression combines with the clear and unambiguous information that arises from the privileged material about her involvement in preparing an explosive belt.’ For these reasons, the appeal of the petitioner to the Appeals Board was denied. It should also be pointed out that in the Respondent’s reply in the proceeding before us — which was supported by an affidavit — it was stated that ‘the petitioner aided her brother in the terrorist activity and, inter alia, sewed for his purposes explosive belts’ — explosive belts, and not merely one explosive belt.

32. It seems to us that in the case of the petitioner, the decision of the Respondent is properly based on the provisions of art. 78 of the Fourth Geneva Convention and the provisions of the Amending Order. Very grave behaviour is attributed to the petitioner, and the danger deriving therefrom to the security of the State is very real. Thus, for example, the petitioner prepared more than one explosive belt. It was argued before us that the petitioner did not know about her brother’s activity. This story was rejected by the Appeals Board, and we will not intervene in this finding of the Appeals Board. The behaviour of the petitioner is very grave. It creates a significant danger to the security of the area, and it goes well beyond the minimum level required by the provisions of art. 78 of the Fourth Geneva Convention and the Amending Order. Indeed, assigning the place of residence of the petitioner is a rational measure — within the framework of the required proportionality — to reduce the danger she presents in the future. We asked counsel for the State why the petitioner is not indicted in a criminal trial. The answer was that there is no admissible evidence against her that can be presented in a criminal trial, for the evidence against her is privileged and cannot be presented in a criminal trial. We regard this as a satisfactory answer. Admittedly, the petitioner is subject to administrative internment (which will end in October 2002). However the possibility of extending this is being considered. It seems to us that the choice between administrative internment and assigned residence, in the special case before us, is for the Respondent to make, and if he decided to terminate the administrative internment and determine instead assigned residence, there is no basis for our intervention in his decision. This is the case even if his decision was dictated, inter alia, by considerations of a general deterrent, which the Respondent was entitled to take into account.

Kipah Mahmad Ahmed Ajuri (the first petitioner in HCJ 7015/02)

33. Kipah Mahmad Ahmed Ajuri (hereafter — the first petitioner) (aged 38) is married and is the father of three children. He is the brother of the petitioner. His brother is, as stated, the terrorist Ahmed Ali Ajuri, to whom very grave terrorist activity is attributed (as we have seen). The petitioner before us admitted in his police interrogation (on 23 July 2002) that he knew that his brother Ali Ajuri was wanted by the Israeli security forces ‘about matters of explosions’ and was even injured in the course of preparing an explosive charge. The first petitioner said in his interrogation that his brother stopped visiting his home because he was wanted, and also that he carried a pistol and had in his possession two assault rifles. Later on during his interrogation (on 31 July 2002) he admitted that he knew that his brother was a member of a military group that was involved ‘in matters of explosions’. He also said that he saw his brother hide a weapon in the family home under the floor, and that he had a key to the apartment in which the group stayed and prepared the explosive charges. He even took from that apartment a mattress and on that occasion he saw two bags of explosives and from one of these electric wires were protruding. On another occasion, the first petitioner said in his police interrogation that he acted as look-out when his brother and members of his group moved two explosive charges from the apartment to a car that was in their possession. On another occasion — so the first petitioner told his interrogators — he saw his brother and another person in a room in the apartment, when they were making a video recording of a person who was about to commit a suicide bombing, and on the table in front of him was a Koran. The first petitioner said in his interrogation that he brought food for his brother’s group.

34. In his testimony before the Appeals Board, the first petitioner confirmed that he knew that his brother was wanted and that he knew his friends. He testified that he did indeed have a key to his brother’s apartment and he removed from it a mattress, although he did not know that the apartment was a hide-out. He confirmed in his testimony that he went to the apartment and saw two bags there. He confirmed that he saw his brother make a video recording of someone when a Koran was on the table, and that on another occasion he saw his brother finish hiding an assault rifle in the floor of the house. The first petitioner confirmed in his testimony that he saw his brother and his friends remove from the residential house two bags and that he was told that they contained explosives, although he said that he was not asked to be a look-out or warn those present.

35. The Appeals Board examined the statements of the first petitioner and also the evidence presented to it and the testimony that it heard. It held in its decision (on 12 August 2002) that the first petitioner was indeed involved in the activity of his brother Ali Ajuri. The Appeals Board held, as findings of fact for the purpose of its decision, that the first petitioner did indeed act as stated in his statements during the interrogation, and not merely as he said in his testimony. In this respect, the Board pointed out the fact that the first petitioner was aware of his brother’s deeds, his brother’s possession of the weapon and hiding it. The Board also held that the first petitioner knew of the hide-out apartment, had a key to it and removed a mattress from it. The Board held that the first petitioner knew about the explosive charges in the apartment and did indeed act as a look-out when the charges were moved. The Board further pointed to the occasion when the first petitioner brought food to the members of the group, after he saw them make a video recording of a youth who was about to perpetrate a suicide bombing. The Board said that ‘the gravity of the deeds and the extensive terrorist activity of [the first petitioner’s] brother is very grave. The involvement of [the first petitioner] with his brother is also grave, and it is particularly grave in view of the fact that [the petitioner] does not claim that his wanted brother forced him to help him, from which it follows that he had the option not to help the brother and collaborate with him.’

36. We think that also in the case of the first petitioner there was no defect in the decision of the Respondent. The first petitioner helped his brother, and he is deeply involved in the grave terrorist activity of that brother, as the Appeals Board determined, and we will not intervene in its findings. Particularly serious in our opinion is the behaviour of the first petitioner who acted as a look-out who was supposed to warn his brother when he was involved at that time in moving explosive charges from the apartment where he was staying — and from which the first petitioner took a mattress in order to help his brother — to a car which they used. By this behaviour the first petitioner became deeply involved in the grave terrorist activity of his brother and there is a reasonable possibility that he presents a real danger to the security of the area. Here too we asked counsel for the Respondent why the first petitioner is not indicted in a criminal trial, and we were told by him that this possibility is not practical. The measure of assigning the place of residence of the first petitioner is indeed a proportionate measure to prevent the danger he presents, since the acts of this petitioner go far beyond the minimum level required under the provisions of art. 78 of the Fourth Geneva Convention. Since this is so, the respondent was entitled to take into account the considerations of a general deterrent, and so to prefer the assigned residence of this petitioner over his administrative internment. There is no basis for our intervention in this decision of the Respondent.

Abed Alnasser Mustafa Ahmed Asida (the second petitioner in HCJ 7015/02)

37. Abed Alnasser Mustafa Ahmed Asida (hereafter — the second petitioner) (aged 35) is married and a father of five children. He is the brother of the terrorist Nasser A-Din Asida. His brother is wanted by the security forces for extensive terrorist activity including, inter alia, responsibility for the murder of two Israelis in the town of Yitzhar in 1998 and also responsibility for two terrorist attacks at the entrance to the town of Immanuel, in which 19 Israelis were killed and many dozens were injured. The second petitioner was interrogated by the police. He admitted in his interrogation (on 28 July 2002) that he knew that his brother was wanted by the Israeli security forces for carrying out the attack on Yitzhar. The second petitioner said that he gave his brother food and clean clothes when he came to his home, but he did not allow him to sleep in the house. He even said that he gave his private car on several occasions to his brother, although he did not know for what purpose or use his brother wanted the car. He further said that he stopped giving his brother the car because he was afraid that the Israeli security forces would assassinate his brother inside his car. On another occasion, he drove his wanted brother to Shechem (Nablus), although on this occasion too the second petitioner did not know the purpose of the trip. The second petitioner also said that he saw his brother carrying an assault rifle. On another occasion he helped another wanted person, his brother-in-law, by giving him clean clothes, food and drink when he visited him in his home, and even lent him his car and drove him to Shechem several times. While the second petitioner claimed that he did not know for what purpose the car was used and what was the purpose of the trips to Shechem, the second petitioner told the police that he drove his brother to the hospital when he was injured in the course of preparing an explosive charge and he lent his car — on another occasion — in order to take another person who was also injured while handling an explosive charge; at the same time, the second petitioner claimed in his interrogation that he did not know the exact circumstances of the injury to either of those injured.

38. In his evidence before the Appeals Board, the second petitioner confirmed that he knew that his brother was wanted. He testified that he did indeed drive his brother but he did not give him the car. He testified that he saw his brother with a weapon and that he wanted to give him food during the brief visits to him, but he did not have time. The Appeals Board, in its decision (on 12 August 2002), held that the second petitioner did indeed know of the deeds of his brother and that he possessed a weapon and that he was in close contact with him, including on the occasions when he gave him — at his home — clean clothes and food. The Board held that the second petitioner did not only drive his wanted brother in his car but also lent the car to his brother and to another wanted person. The Board pointed out that ‘we are not dealing with minor offences’, but it added that ‘the contact between the [second petitioner] and his brother and his material help to him… are significantly less grave than those of [the first petitioner]’. The Board added, against this background, that ‘we direct the attention of the area commander to the fact that his personal acts are less grave than those of [the first petitioner], for the purpose of the proportionality of the period’.

39. We are of the opinion that there was no basis for assigning the place of residence of the second petitioner. Admittedly, this petitioner was aware of the grave terrorist activity of his brother. But this is insufficient for assigning his place of residence. The active deeds that he carried out, in helping his brother, fall below the level of danger required under the provisions of art. 78 of the Fourth Geneva Convention and the provisions of the Amending Order. His behaviour does not contain such a degree of involvement that creates a real danger to the security of the area, thereby allowing his place of residence to be assigned. This petitioner claimed — and the Appeals Board did not reject this — that he did not know what use his brother made of the car that the second petitioner made available to him, and that he did not know, when he drove his brother, what was the brother’s purpose. It should be noted that we think that the behaviour of the second petitioner — even though it derived from close family ties — was improper. It is precisely that help that family members give to terrorists that allows them to escape from the security forces and perpetrate their schemes. Nonetheless, the mechanism of assigned residence is a harsh measure that should be used only in special cases in which real danger to security of the area is foreseen if this measure is not adopted (cf. HCJ 2630/90 Sarachra v. IDF Commander in Judaea and Samaria [33]). We do not think that the case of the second petitioner falls into this category. It seems to us that the danger presented to the security of the area by the actions of the second petitioner does not reach the level required for adopting the measure of assigned residence. It appears that the Appeals Board was also aware of this, when it considered the possibility of reducing the period of the assigned residence. In our opinion, the case of the second petitioner does not fall within the ‘zone of reasonableness’ prescribed by art. 78 of the Fourth Geneva Convention and the Amending Order, and there is no possibility of assigning the residence of this petitioner. Admittedly, we are prepared to accept that assigning the place of residence of the second petitioner may deter others. Nonetheless, this consideration — which may be taken into account when the case goes beyond the level for adopting the mechanism of assigned residence — cannot be used when the conditions for exercising art. 78 of the Fourth Geneva Convention and the Amending Order do not exist.

Conclusion

40. Before we conclude, we would like to make two closing remarks. First, we have interpreted to the best of our ability the provisions of art. 78 of the Fourth Geneva Convention. According to all the accepted interpretive approaches, we have sought to give them a meaning that can contend with the new reality that the State of Israel is facing. We doubt whether the drafters of the provisions of art. 78 of the Fourth Geneva Convention anticipated protected persons who collaborated with terrorists and ‘living bombs’. This new reality requires a dynamic interpretive approach to the provisions of art. 78 of the Fourth Geneva Convention, so that it can deal with the new reality.

41. Second, the State of Israel is undergoing a difficult period. Terror is hurting its residents. Human life is trampled upon. Hundred have been killed. Thousands have been injured. The Arab population in Judaea and Samaria and the Gaza Strip is also suffering unbearably. All of this is because of acts or murder, killing and destruction perpetrated by terrorists. Our heart goes out to Mrs Kessler who lost her daughter in a depraved terrorist act and to all the other Israelis who have lost their beloved ones or have been themselves severely injured by terrorist attacks. The State is doing all that it can in order to protect its citizens and ensure the security of the region. These measures are limited. The restrictions are, first and foremost, military-operational ones. It is difficult to fight against persons who are prepared to turn themselves into living bombs. These restrictions are also normative. The State of Israel is a freedom-seeking democracy. It is a defensive democracy acting within the framework of its right to self-defence — a right recognized by the charter of the United Nations. The State seeks to act within the framework of the lawful possibilities available to it under the international law to which it is subject and in accordance with its internal law. As a result, not every effective measure is also a lawful measure. Indeed, the State of Israel is fighting a difficult war against terror. It is a war carried out within the law and with the tools that the law makes available. The well-known saying that ‘In battle laws are silent’ (inter arma silent leges — Cicero, pro Milone 11; see also W. Rehnquist, All the Laws but One, 1998, at p. 218) does not reflect the law as it is, nor as it should be. This was well-expressed by Lord Atkin in Liversidge v. Anderson [37], at p. 361, when he said:

‘In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which… we are now fighting, that the judges… stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’

Indeed, ‘… even when the cannons speak, the military commander must uphold the law. The power of society to stand against its enemies is based on its recognition that it is fighting for values that deserve protection. The rule of law is one of these values’ (HCJ 168/91 Morcos v. Minister of Defence [34], at p. 470). ‘We have established here a law-abiding State, that realizes its national goals and the vision of generations, and does so while recognizing and realizing human rights in general, and human dignity in particular’ (HCJ 3451/02 Almadani v. Minister of Defence [3], at p. 35). This was well expressed by my colleague, Justice M. Cheshin, when he said:

‘We will not falter in our efforts on behalf of the rule of law. We committed ourselves by our oath to dispense justice, to be the servants of the law, and to be faithful to our oath and to ourselves. Even when the trumpets of war sound, the rule of law makes its voice heard’ (Sabiah v. IDF Commander in Judaea and Samaria [21], at p. 369).

Indeed, the position of the State of Israel is a difficult one. Also our role as judges is not easy. We are doing all we can to balance properly between human rights and the security of the area. In this balance, human rights cannot receive complete protection, as if there were no terror, and State security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State. It provides a reason for its struggle. Our work, as judges, is hard. But we cannot escape this difficulty, nor do we wish to do so. I discussed this in one case, where I said:

‘The decision has been placed at our door, and we must rise to the challenge. It is our duty to protect the legality of executive acts even in difficult decisions. Even when the cannons speak and the Muses are silent, law exists and operates, determining what is permitted and what forbidden, what is lawful and what unlawful. And where there is law, there are also courts that determine what is permitted and what forbidden, what is lawful and what unlawful. Part of the public will be happy with our decision; another part will oppose it. It is possible that neither the former nor the latter will read the reasoning. But we shall do our work. “This is our duty and this is our obligation as judges”.’ (HCJ 2161/96 Sharif v. Home Guard Commander IsrSC [35], at p. 491, citing the remarks of then-Vice-President Justice Landau in HCJ 390/79 Dawikat v. Government of Israel [36], at p. 4).

The result is that we are denying the petition in HCJ 7019/02, and the petition in HCJ 7015/02, in so far as it concerns the first petitioner. We are making the show-cause order absolute with regard to the second petitioner in HCJ 7015/02.

Vice-President S. Levin

I agree.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice M. Cheshin

I agree.

Justice T. Strasberg-Cohen

I agree.

Justice D. Dorner

I agree.

Justice Y. Türkel

I agree.

Justice D. Beinisch

I agree.

3 September 2002.

HCJ 7019/02 — petition denied.

HCJ 7015/02 — petition of the first petitioner denied; petition of the second petitioner granted.

Full opinion:

Ajuri v. IDF Commander in West Bank.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/02/150/070/A15/02070150.a15.pdf

Aita v. Regional Commander of Judea and Samaria

Case/docket number:

HCJ 69/81

Date Decided:

Tuesday, April 5, 1983

Decision Type:

Original

Topics:

International Law

Laws of war

Occupied territories

Abstract:

The Petitioners carried on various businesses in their respective regions. They challenged the validity of enactments imposing excise duty on local manufacturers in Judea and Samaria and on goods and services in the Gaza Strip. along with maintaining accounting procedures. These had been levied following the introduction of Value Added Tax in Israel.

Their main submissions were (a) since the Regions where the Petitioners live and work were occupied territory. Article 43 of the Hague Regulations required the Regional Commander to respect existing law unless the circumstances rendered it absolutely impossible. Such circumstances did not obtain in the Regions; (b) under the said Article, all enactments not designed to promote public order and safety were forbidden, whatever the purposes thereof; (c) Article 48 permits the Military Government only to adapt the collection of taxes to existing law and therefore does not give it power to enact new legislation even if it is for the benefit of the Region and its local population.

The High Court of Justice ruled:

A. (1) The basic norm on which the structure of the Israeli government in Judea, Samaria and the Gaza Strip is built, is the norm of military government.

(2) The authority of such government is temporary and it shall continue in power as long as it is effective.

(3) On assuming authority and as long as it continues, the military government occupies the place of the central government and its local authorities that ruled in the region, and concentrates in its hands every power, right and duty of such central government under the existing law in the Region, subject to such changes as the establishment of the military itself involves and the restrictions imposed by the laws of war.

(4) The authority of the military government is not limited to implementing the local law. It may translate its powers and directives in terms of security enactments subject, however, to the rules of the laws of war.

B. (1) The High Court of Justice may review the validity of acts of the military government according to the principles of Israeli administrative law so as to determine [p. 201] whether these acts are lawful under the norms which bind Israeli public servants, wherever effected.

(2) Regarding security legislation: any deviation by the military government from the guide-lines set by the IDF commander in the area, or dependence on invalid criteria can be ground for intervention of the High Court even though no reference is made to an act contrary to the laws of war, but to an act that is contrary to the local law in force when IDF control was established, or to legislation enacted by the IDF commander in the area.

C. (1) The acts of the occupying power derive their force and validity from customary international law which is embodied in international conventions and partly remains in the form of common law as reflected in the judgments of international or national judicial tribunals, in the practice of nations and in legal literature.

(2) The latter is not merely interpretative of the international conventions which codify customary rules, it may also serve as an independent source evidencing general practice accepted as law.

(3) When the High Court examines the question of the law as to whether there has been an act of omission or commission conflicting with public international law, it must differentiate between customary and conventional international law, and make a distinction between the two.

(4) Customary international law is automatically incorporated into Israeli law, and becomes part of it except when it is in direct conflict with enacted Israeli law, in which case, Israeli law takes precedence.

(5) Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force.

(6) The legal principles embraced by the Supreme Court on subjects arising in the occupied territories are those of customary international law which gives force also to the local courts in the occupied territories according to Article 43 of the Hague Regulations, adopted in the security legislation.

D. (1) In order to determine its substance and limitations, the term customary international law should be understood in accordance with its description in Article 38(1) of the Statute of the International Court of Justice and as such will be applied by the High Court of Justice along with local law which, for practical purposes, excepting the temporary or exceptional cases, is accepted by a significant majority of those operating within the juridical framework mentioned above.

(2) The burden of proving customary international law as characterized in Article 38 falls upon the party pleading it, a custom which should be acceptable to a decisive majority of the states. [p. 202].

(3) In the absence of conventional or customary regulation of a matter, a state may freely act according to its understanding and its principles, and in so doing it executes existing international law, because the absence of an accepted custom is part of international law.

E. (1) The Addendum to the Fourth Geneva Convention of 1907 (Hague Regulations) expresses customary international law in the framework of the laws of war.

(2) The convention contains no express prohibition on the imposition of taxes by an occupying power. The ramifications arising from Article 48 of the Addendum to the Convention should not be examined according to the narrow limits resulting from the wording of the article - which does not enable reaching definite conclusions regarding the permissible limits of taxation. But the subject should be examined in light of the quality of the military regime and its obligations, and in light of the responsibilities towards the areas which it controls.

(3) Article 49 opens the door to the imposition of additional payment on the populace: there are no restrictions on the frequency of the levy; no restrictions on the reasons for its imposition, the manner of its collection, its scope, the individual rates that shall be determined, or resulting associated features; but there is a restriction regarding the purpose of the levy, and other restrictions lacking real significance according to Article 51.

(4) Articles 48 and 49 of the Hague Regulations have the sole purpose of limiting the scope of responses in the event that either of two situations arises: One, the collection of taxes by the military regime that are intended for the needs of the State, and two, the imposition of forced levies. Should either of these two actions take place, the military regime will be restricted in regards to methods of implementation and disposition of income, as detailed in the Hague Regulations.

(5) Regarding the implementation of the payment to be made: The amount of the debt shall be determined according to the normal rules of assessment (how much to be collected) (from whom to collect). The debit is not rigidly fixed, but is flexible to no small degree and can be fixed according to existing conditions. In this matter there is no logic in applying the same criterion to a recently established military government and to a military government that has been in charge of an area with all its attendant civilian problems for more than ten years.

(6) A forced levy by the military is clearly a means of compulsion expressed by a forced collection of cash meant to flow directly to army coffers, with no relationship or resemblance to taxes for civilian purposes.

F. (1) The military regime does not have the right to impose taxes on the inhabitants of the occupied territories and divert those taxes to the treasury of the state in whose name it acts.

(2) The doctrine of investing only the ruler with the privilege of imposing ordinary taxes and not automatically, the military does not require a limitation on the power of imposing taxes, if such imposition is for the good of the public.

(3) If the military government is permitted to impose military taxes, then automatically it may adopt more moderate measures.

(4) There is no basis to the argument that a general rule of customary international law has developed, forbidding totally and absolutely and for any reason whatsoever, all military legislative enactments imposing new taxes. On the other hand, there is no reason to conclude that the matter of new taxes is left to the sole discretion of the military regime. [p. 203].

G. (1) In light of the absence of a decisive provision in Article 48, and since it is possible to learn from the provisions of the regulations of the lacuna created as a result of the formulation of Articles 48, 49, it is to be expected that every examination of tax matters take into account the ramifications arising from the more pronounced general rules of Article 43 that deal with the obligation to maintain order in public life, and the obligation to honour existing law, unless it is absolutely impossible to do so.

(2) In the matter of ensuring an orderly public life, we are not of necessity referring to a one-time action, but rather to an ongoing obligation which is not to be maintained automatically but rather in keeping with changing circumstances from time to time if the situation calls for it. The reasons mentioned are not necessarily those of security, but rather economic and social. The obligation to return to the prior situation cannot obscure the added obligation to ensure the continued order in public life.

(3) The motivation for maintaining the law as it was is decisive, if the general conditions and circumstances demand the intrusion for a legitimate purpose, according to Article 43.

(4) Acts arising out of the need to maintain some balance between the economy of the territory and that of the occupying power are legitimate, even if they involve changes in the existing law.

(5) In this regard the duration of the military government is an extremely important element, in weighing the needs of the military, in weighing the needs of the territory, and in maintaining the balance between them.

H. (1) The Hague Regulations make no distinction between direct and indirect taxation.

(2) Indirect taxes frequently serve to regulate and balance the economy and therefore greater freedom of action is demanded in their imposition under various and changing conditions.

I. (1) The benefit of the local population is not the sole criterion. There must be a balance with military requirements.

(2) The criterion - to determine whether the military government has shown equal concern for the local population in effecting some act and/or adopting measures similar to those in the area of the occupying power, it is sufficient to show that a reasonable exercise has been made of the powers available, granted by Article 43, to introduce a value added tax.

(3) The imposition of value added tax in Israel demanded the imposition of a parallel tax in the occupied territories, in order to make possible continuation of the situation hidden in the positive economic and most important facets of the territories and their population in the existing circumstances [p. 204].

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Bejski, Moshe

majority opinion

Shilo, Yitzhak

majority opinion

Full text of the opinion:

H.C. 69/81

BASSIL ABU AITA ET AL.

THE REGIONAL COMMANDER OF JUDEA AND SAMARIA

AND STAFF OFFICER IN CHARGE OF MATTERS

OF CUSTOMS AND EXCISE

H.C. 493/81

OMAR ABDU KADAR KANZIL ET AL.

OFFICER IN CHARGE OF CUSTOMS, GAZA STRIP REGION AND

THE REGIONAL COMMANDER OF THE GAZA STRIP

In the Supreme Court sitting as the High Court of Justice

[April 5, 1983]

Before: Shamgar P., Bejsky J. and Shilo J.

International Law - Administered Territories - Rights and Duties of Occupying Power - Registration and Taxation - Articles 43 and 49 of the Hague Regulations, 1907.