HCJ 201/09

Physicians for Human Rights

and others

v.

Prime Minister of Israel

and others

HCJ 248/09

Gisha Legal Centre for Freedom of Movement

and others

v.

Minister of Defence

The Supreme Court sitting as the High Court of Justice

[19 January 2009]

Before President D. Beinisch and Justices A. Grunis, E. Rubinstein

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

Facts: Following years during which rockets were fired at Israel from the Gaza Strip, on 27 December 2008 the IDF began a large-scale military operation in the Gaza Strip. The petition in HCJ 201/09 concerns delays in evacuating the wounded to hospitals in the Gaza Strip, and claims that ambulances and medical personnel are being attacked by the IDF. The petition in HCJ 248/09 relates to the shortage of electricity in the Gaza Strip, which prevents hospitals, clinics, the water system and the sewage system from functioning properly. According to the petitioners, this is a result of disruptions caused by the IDF.

Held: The Court reconfirmed that the IDF’s combat operations are governed by international humanitarian law (IHL). According to the fundamental principles of IHL that apply during the conduct of hostilities, ‘protected civilians’ — whether located in territory subject to belligerent occupation or within the sovereign territory of one of the parties to the conflict — in all circumstances are entitled, inter alia, to be treated humanely and to be protected against all acts of violence or threats. The Court referred specifically to those provisions within IHL that grant protection to medical facilities and staff against attack, unless such facilities are exploited for military purposes. The Court also focused on provisions within IHL that require the parties to enable the evacuation and the treatment of the wounded. Furthermore, the Court reaffirmed that the protection of the civilian population includes the obligation to allow the free passage of humanitarian relief. The respondents did not dispute the obligations incumbent on them under IHL, as interpreted by the Court. They provided detailed explanations of all the measures that had been and continued to be implemented in fulfilment of these duties. Having considered all the circumstances and information presented to it, the Court found no basis to grant the relief sought by the petitioners. The petition was therefore denied.

Israeli Supreme Court cases cited:

[1]        HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [2004] IsrSC 58(5) 385; [2004] IsrLR 200.

[2]        HCJ 3452/02 Almadani v. Minister of Defence [2002] IsrSC 56(3) 30; [2002-3] IsrLR 47.

[3]        HCJ 3114/02 Barakeh v. Minister of Defence [2002] IsrSC 56(3) 11; [2002-3] IsrLR 39.

[4]        HCJ 769/02 Public Committee against Torture v. Government [2006] (2) IsrLR 459.

[5]        HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [2005] (2) IsrLR 206.

[6]        HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [2002] IsrSC 53(3) 26.

[7]        HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [2003] IsrSC 57(1) 385; [2002 3] IsrLR 123.

[8]        HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [2003] IsrSC 57(1) 403.

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

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

[11]     HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

[12]     HCJ 5488/04 Al-Ram Local Council v. Government of Israel (not yet reported).

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

[14]     HCJ 69/81 Abu Ita v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(2) 197.

[15]     HCJ 9132/07 Albassioni v. Prime Minister (2008) (not yet reported).

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

[17]     CrimA 6659/06 Iyad v. State of Israel (2008) (not yet reported).

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

[19]     HCJ 2936/02 Physicians for Human Rights v. IDF Commander in West Bank [2002] IsrSC 56(3) 3; [2002-3] IsrLR 35.

Jewish law sources cited:

[20]     Jerusalem Talmud, Sanhedrin 4, 9

[21]     Tosefta, Shabbat 16, 14.

For the petitioners — T. Feldman, Y. Elam, F. El-Ajou, H. Jabarin.

For the respondents — A. Helman, A. Segal-Elad, H. Gorni.

JUDGMENT

President D. Beinisch

1.    We have before us two petitions filed by human rights organizations, which concern the humanitarian situation in the Gaza Strip due to the state of hostilities that prevails there as a result of the military operation known as ‘Cast Lead’. The petition in HCJ 201/09 addresses delays in evacuating persons wounded in the Gaza Strip to hospitals, and claims that ambulances and medical personnel are being attacked by the Israel Defence Forces (hereinafter: IDF). The petition in HCJ 248/09 addresses the shortage of electricity in the Gaza Strip, which prevents hospitals, clinics, the water system and the sewage system from functioning properly. According to the petitioner, this is a result of disruptions caused by the IDF.

Background

2.    For approximately eight years the towns near the Gaza Strip have confronted the threat of missiles and grenades that are fired by members of the terrorist organizations operating from within the Gaza Strip and are directed at the civilian population in the cities and towns of southern Israel. After the Hamas organization came to power in Gaza, the terrorist operations increased in intensity and in number. The scope of the attacks was extended to a large part of Israel; the range of the missile attacks became greater, causing the deaths of civilians and disrupting the lives of all the residents of southwest Israel.

For a long time, while Israel acted with restraint and moderation, the terrorist organizations in the Gaza Strip, led by Hamas, took steps to increase their abilities: they smuggled a huge quantity of weapons and missiles through hundreds of subterranean tunnels they had dug, improved the weapons they used and increased the threat to the inhabitants within range of the missiles.

3.    On 27 December 2008 the IDF embarked on a large-scale military operation initiated by Israel in the Gaza Strip, in order to stop the firing of grenades and Quassam and Grad missiles at the Israeli towns in the south of the country, and to change the security position in the south of the country that had been brought about by Hamas, the terrorist organization that controls the Gaza Strip. In the framework of this operation, the Israeli Air Force attacked targets used by the Hamas leadership in the Gaza Strip, and on 3 January 2009 tanks, infantry and engineering forces joined in the fighting in the Gaza Strip. Intensive fighting is taking place in the area in difficult conditions. The military compounds and targets are situated in areas inhabited by the civilian population, and sometimes even in actual homes. Regrettably, the local population is consequently suffering serious and considerable harm.

4.    The two petitions were filed on 7 January 2009, and on 9 January 2009 we held an urgent hearing on both of them. During the hearing it emerged from the state’s response that the IDF had set up a humanitarian operations room, which was intended to resolve the difficulties in coordinating the evacuation of the injured, and that action was being taken to restore the electricity infrastructure in the Gaza Strip. Unfortunately, the hearing on 9 January 2009 was not attended by any of the army personnel responsible for the humanitarian situation in the Gaza Strip, who would be able to clarify the position and the manner in which the humanitarian mechanisms set up by the state were operating, and respond to specific questions. We therefore decided at the end of the hearing that the state should submit a detailed response with regard to the mechanisms that it had established and the steps it had taken in order to enable the evacuation of the wounded in a more effective manner. We also found that we required an update with regard to the action that was being taken to repair the electricity lines and the electricity supply to the Gaza Strip. We therefore ordered counsel for the state to submit a revised detailed response, supported by a deposition of a senior officer responsible for the humanitarian arrangements in the Gaza Strip. On 13 January 2009, the state filed its detailed response together with the deposition of the head of the District Coordination Office for the Gaza Strip, Colonel Moshe Levy, and on 15 January 2009 we held an additional hearing of the petition, to which Colonel Levy was summoned. Shortly before the hearing the petitioners also filed revised statements.

The arguments of the petitioner in HCJ 201/09

5.    The petitioner claims that since the military operation in the Gaza Strip began on 27 December 2008, there have been many cases in which IDF soldiers fired on medical personnel while they were carrying out their duties, despite the fact that the vehicles and uniforms of the medical personnel bear the distinguishing insignia recognized and agreed in the Geneva conventions. It is alleged that on 4 January 2009 alone, four medical personnel were killed as a result of an IDF strike while they were carrying out their duties, and details were provided of additional cases in which medical personnel were injured as a result of IDF attacks. An additional claim made by the petitioner is that the Palestinian Red Crescent and the International Red Cross have encountered serious difficulties in coordinating the evacuation of the injured for medical treatment, on account of the ongoing military operations, the refusal of the Army to allow movement between the north and the south of the Gaza Strip, and due to the complicated methods of coordination. According to the petitioner, many hours elapse from the time a coordination request is made until the time it is actually carried out. It is alleged that in some cases, the medical personnel waited a whole day for coordination. According to the petitioner, these attacks on the medical personnel and the evacuation efforts are contrary to the provisions of customary international humanitarian law and are also prohibited under the constitution of the International Criminal Court; they are also contrary to the provisions of Israeli administrative law, in that they are disproportionate. Finally the petitioner requested that the court issue an interim order that the respondents allow and coordinate the evacuation of the injured members of the Elaidi family, who were injured by shells fired by the IDF at their home on the night of 3 January 2009 and who have been trapped in their home since that night because all efforts to coordinate their evacuation have failed. In the petitioner’s revised statement, which was only filed on the date of the last hearing, details were provided of additional incidents in which it was alleged that shots were fired at medical personnel and rapid assistance was not given to families who were injured.

The arguments of the petitioners in HCJ 248/09

6.    This petition focuses on the shortage of electricity in the Gaza Strip. In their petition, the petitioners furnished details of the quantities of electricity and industrial diesel oil that are needed in the Gaza Strip, compared to the quantities that Israel allowed to enter the Gaza Strip in recent months. It was alleged that since 27 December 2008, the State of Israel has prevented all entry of industrial diesel oil into the Gaza Strip, and as a result the power station in the Gaza Strip (which supplies approximately one third of the amount of electricity required by the inhabitants of the Gaza Strip) has been completely shut down since 30 December 2008. It was also alleged in the petition that on 3 January 2009 an IDF attack in the Gaza Strip damaged seven of the twelve electricity lines that bring electricity from Israel and Egypt into the Gaza Strip. As a result, it was alleged that the inhabitants, as well as hospitals, the main sewage purification plant in the Gaza Strip and other essential facilities, were deprived of electricity. It was further alleged that it is impossible to repair the damaged electricity lines because Israel is preventing the transfer of the necessary spare parts and because of the ongoing hostilities, which do not allow sufficient time for repairs to be made by Palestinian. The petitioners provided details in their petition of the humanitarian damage to the civilian population that results from the shortage of electricity: thousands of people do not have access to running water; sewage is flowing in the streets as a result of the shortage of electricity for the sewage pumps and purification facilities, and at the purification plant in the city of Gaza the spillage has already reached a distance of approximately one kilometre from the plant; approximately a quarter of a million people have had no electricity for more than two weeks; the hospitals in the Gaza Strip are completely dependent on generators, which are about to shut down entirely because they are operating round the clock and beyond their capacity; the activity of most of the bakeries in the Gaza Strip has come to a halt due to a shortage of cooking gas and electricity, leading to a serious shortage of bread in the Gaza Strip. In this aspect it was alleged in the petition that since the State of Israel controls the supply of electricity to the Gaza Strip, especially at present when IDF troops control large parts of the Gaza Strip, its duty to provide the needs of the civilian population in the Gaza Strip is even greater, especially with regard to the proper functioning of medical facilities, water supply facilities and sewage facilities.

The respondents’ arguments

7.    The respondents’ preliminary response to the two petitions, which was filed on 8 January 2009, contained legal arguments and initial factual contentions on the merits of the case. In their revised statements that were filed in the court and at the hearings that we held on the petitions, the respondents provided additional descriptions of the factual position in the Gaza Strip, as far as circumstances allowed. Originally they requested that we dismiss the petitions in limine because they are too general and because the matters raised in them are not justiciable. They argued that while the hostilities are taking place, the court cannot address issues of this kind, if only for the reason that it is not possible to present a dynamic picture of the battlefield to the court in real time. Nevertheless, the respondents stated that the IDF is operating in accordance with international humanitarian law, and they  accept that the army has duties to respect the humanitarian needs of the civilian population even during hostilities and that preparations to this effect should be made in advance, as this court held in HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [1], subject to any changes required by the circumstances. In this context it was alleged that since the Disengagement Plan was implemented in September 2005, there is no longer any state of occupation in the Gaza Strip and the State of Israel has no control over what is done there. Therefore, there is no ‘military commander’ today, within the meaning of this term under the laws of occupation, who can operate throughout the Gaza Strip. It was also argued that since there are no channels of communication between Israel and the terrorist leadership of the Hamas organization in the Gaza Strip, it is necessary to make the various humanitarian arrangements with international organizations and with the Palestinian Civil Committee, whose offices are in Ramallah.

8.    With regard to the various mechanisms that have been established by the State of Israel for providing humanitarian assistance for the civilian population in the Gaza Strip, the state specified in its response that prior to the military operation known as ‘Cast Lead’, an additional sixty-six reserve officers and twenty regular officers were assigned to the District Coordination Office for Gaza, and the District Coordination Office as a whole was increased to a complement of three hundred staff. Moreover, a set of humanitarian war rooms was established, each for a separate subject — health, international organizations and infrastructures. The purpose of these is to provide a solution in real time for the humanitarian problems that arise during the fighting, and to strengthen communications between the combat forces and the coordination and communication authorities. Each of these war rooms operates around the clock, with on-site professional and legal support. Furthermore, a humanitarian unit was established in each operational division, each comprising five officers, for the purpose of coordinating operations in the field with the international organizations. It was claimed that the activities are also coordinated with private organizations that are known to the District Coordination Office, and also with the doctor in charge at Al-Shifa Hospital, the Ministry of Health in Ramallah and sometimes also with individual doctors and ambulance drivers.

9.    With regard to the evacuation of the wounded and coordination of the movements of medical personnel in the Gaza Strip, it was argued in the state’s response that the order issued to the forces operating in the area is to refrain from attacking medical personnel and ambulances in the course of carrying out their duties, except in cases where it is clear and known that ambulances are being exploited for the purpose of fighting the IDF. The respondents claim that from intelligence information in their possession, it transpires that terrorists are making use of ambulances to perpetrate terrorist activity and to transport missiles and ammunition from one place to another, and that in these circumstances, even international humanitarian law provides that these protected institutions lose the protection that they normally enjoy. Establishing the coordination mechanism was intended to ensure that humanitarian rescue operations are carried out. The respondents further argued that they do not have complete and up-to-date information, but if indeed medical personnel have been and are being injured during the fighting, this has not been done intentionally, but results from the hostilities that have been taking place in the vicinity. The respondents also pointed out in this respect that it is well known that IDF soldiers have also been injured by mistake as a result of fire from other IDF troops. The respondents provided details of the measures adopted before and during the military operations in order to maintain and improve the coordination of the evacuation of the wounded. With regard to the application for an interim order for the immediate evacuation of the members of the Elaidi family, the respondents said at the hearing of 9 January 2009 that after making arrangements with the forces in the field and the Palestinians, the evacuation of the members of the family was completed, with the exception of two adult women who chose not to be evacuated.

10.  With regard to the claims concerning the supply of electricity to the Gaza Strip during the Operation, the respondents said that in view of the ongoing combat activities in the Gaza Strip, it is not possible to totally prevent damage to the local electricity network. They argued that although the electricity network in the Gaza Strip was indeed damaged during the IDF’s combat operations, constant efforts were being made to repair the electricity lines that were damaged. At the last hearing that we held, we were told that nine of the ten electricity lines that provide electricity from Israel to the Gaza Strip had been repaired, that there was a fault in the other line that would be repaired and that the state was taking steps to allow optimal supply of electricity to the Gaza Strip, subject to the security restrictions and constraints that will be described below.

Judicial review

11. It should be stated at the outset that we do not accept the preliminary arguments of the state whereby we were asked to dismiss the petitions in limine because they are not justiciable. We have already held in a series of judgments that the combat operations of the IDF do not take place in a normative vacuum. There are legal norms in customary international law, in treaties to which Israel is a party and in Israeli law, which provide rules and principles that apply in times of war and which demand that steps are taken to provide humanitarian assistance and protection for the civilian population (see, for example, HCJ 3452/02 Almadani v. Minister of Defence [2], at p. 35 {53}; HCJ 3114/02 Barakeh v. Minister of Defence [3], at p. 16 {46}; Physicians for Human Rights v. IDF Commander in Gaza [1], at pp. 391-393 {205-208}). In HCJ 769/02 Public Committee against Torture v. Government [4], we discussed this question at length, and we said as follows, per President A. Barak:

‘Indeed, in a long string of judgments the Supreme Court has considered the rights of the inhabitants of the territories. Thousands of judgments have been handed down by the Supreme Court, which, in the absence of any other competent judicial instance, has addressed these issues. Our concern has been with the powers of the army during combat and the restrictions imposed on it under international humanitarian law. Thus, for example, we have considered the rights of the local population to food, medicines and other requirements of the population during the combat activities (Physicians for Human Rights v. IDF Commander in Gaza [1]); we have considered the rights of the local population when terrorists are arrested (HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [5]); when transporting the injured (HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [6]; when besieging a church (Almadani v. Minister of Defence [2]); during arrest and interrogation (HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [7]; HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [8]; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [9]). More than one hundred petitions have examined the rights of the local inhabitants under international humanitarian law as a result of the construction of the separation fence (see HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [10]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [11]; HCJ 5488/04 Al-Ram Local Council v. Government of Israel [12]). In all of these the dominant characteristic of the question in dispute was legal. Admittedly, the legal answer was likely to have political and military ramifications, but these did not determine the nature of the question. It is not the results deriving from the judgment that determine its nature, but the questions considered therein and the way in which they are answered. These questions have in the past been, and they remain today, of a predominantly legal nature’ (Public Committee against Torture v. Government [4], at para. 52).

12.  As can be seen from the judgment in Physicians for Human Rights v. IDF Commander in Gaza [1] and from additional judgments, cases in which the court examines the legality of military operations while they are happening are not uncommon, in view of the reality of our lives in which we are constantly confronting terrorism that is directed against the civilian population of Israel, and in view of the need to respond to it while fulfilling the obligations imposed by law even in times of combat. Of course, the court does not adopt any position with regard to the manner in which military operations are conducted nor with regard to the wisdom of the decisions to conduct military operations. Nevertheless, it is the role of the court, even in times of combat, to determine whether, within the framework of the combat operations, the obligation to act in accordance with legal guidelines —within the context of both Israeli law and international humanitarian law — is being upheld.

13. In the present case the petitions were filed while the hostilities were still taking place in the area, with the purpose of obtaining guidelines for the immediate conduct of the army in humanitarian matters, for the benefit of the civilian population that found itself at the heart of the hostilities taking place around it. Our judicial scrutiny is being exercised here while the hostilities are continuing. Naturally this imposes restrictions upon the court’s ability to exercise judicial review and to ascertain all of the relevant facts at this stage of the hostilities. The difficulty of obtaining information in real time was discussed in our judgment in Physicians for Human Rights v. IDF Commander in Gaza [1] (at para. 8). Indeed, while the hostilities are taking place it is not always possible to obtain all the information that is required for exercising judicial review, in view of the dynamic changes that are continually occurring. But the court endeavours to examine the claims in real time, so that it may grant effective relief or set up an arrangement. Thus, for example, I said in this respect in Physicians for Human Rights v. IDF Commander in Gaza [1] that:

‘… judicial review concerning the fulfilment of humanitarian obligations during wartime is limited for many reasons. First, from a practical viewpoint, the urgency with which the court is required to conduct the judicial review process, while dynamic developments are taking place on the battlefield, makes it difficult to carry out the process and to investigate the facts required to authenticate the contentions of the parties. Unlike the process of judicial review in regular petitions, where the mechanism of ascertaining the facts operates after they have occurred and the particulars has been clarified, and the factual picture has been laid out before the court, judicial review that seeks to examine the need for relief when combat activities are still in progress requires a judicial proceeding of a special kind, and the petition before us is a clear example of this. The petition was being heard at the very time that changes and developments in the field were taking place. The parties who presented their arguments before us based their contentions on continual reports from the field of battle, and these reports changed the set of circumstances and the facts during the hearing of the petition. The factual description of ascertainment of the particulars as aforesaid finds expression in the opinion of the President. In such circumstances, the judicial review process is limited and suffers from a lack of adequate tools with which to ascertain the relevant particulars in order to examine them in real time and to grant effective relief in respect of them.’

Naturally, where it is not possible to obtain all the necessary information in real time, the legality of specific incidents is often reviewed retrospectively, after all of the necessary information has been obtained; at the time that hostilities are taking place, however, the role of the court focuses upon judicial review of whether the army is upholding the rules of customary international law, international treaties and Israeli administrative law during the hostilities.

The normative arrangements

14. The normative arrangements that govern the armed conflict between the State of Israel and the Hamas organization are complex. They revolve around the international laws relating to an international armed conflict. Admittedly, the classification of the armed conflict between the state of Israel and the Hamas organization as an international conflict raises several difficulties. Nevertheless, in a string of judgments we have regarded this conflict as an international conflict. Thus, for example, we held in Public Committee against Torture v. Government [4], per President Barak, as follows:

‘Contending with the risk of terror constitutes a part of international law that concerns armed conflicts of an international nature…

The premise on which the Supreme Court has relied for years — and which also was always the premise of counsel for the state before the Supreme Court — is that the armed dispute is of an international character. In this judgment we are adhering to this approach. It should be noted that even those who think that the armed dispute between Israel and the terrorist organizations is not of an international character hold that it is subject to international humanitarian law or international human rights law’ (Public Committee against Torture v. Government [4], at para. 21).

In addition to the laws concerning international armed conflict, the laws of belligerent occupation may also apply. In HCJ 102/82 Tzemel v. Minister of Defence [13], this court held that the application of the laws of occupation in international humanitarian law depends upon the existence of the potential to exercise administrative powers on the ground as a result of the entry of military forces, and not necessarily upon the actual exercise of such power. It was also held that ―

‘If the army takes de facto and effective control of a certain area, the temporary nature of the presence in the area or the intention to maintain only temporary military control cannot derogate from the fact that such conditions give rise to the application of those provisions of the laws of war that address the consequences that also arise in the belligerent occupation. Moreover, the application of the third chapter of the Hague Regulations and the application of the corresponding provisions in the Fourth Geneva Convention are not contingent upon the establishment of a special organizational system that takes the form of military rule. The duties and powers of the military force that derive from the effective occupation of a certain territory come into being as a result of the military control of the territory, i.e., even if the military force exercises its control solely through its ordinary combat units, without establishing and designating a special military framework for the purposes of the administration (see HCJ 69/81 Abu Ita v. IDF Commander in Judaea and Samaria [14])’ (Tzemel v. Minister of Defence [13], at p. 373).

Recently, in HCJ 9132/07 Albassioni v. Prime Minister [15], we discussed the changes in the factual and normative position in the Gaza Strip after the implementation of the Disengagement Plan and the abrogation of Israeli military rule in the Gaza Strip. We held:

‘Since September 2005 Israel no longer has effective control of what happens in the territory of the Gaza Strip. The military administration which governed this territory in the past was terminated by a decision of the government, and Israeli soldiers are no longer present in this territory on a permanent basis, nor do they control what takes place there. In such circumstances, the State of Israel does not have a general duty to ensure the welfare of the inhabitants of the Gaza strip and to maintain public order in the Gaza Strip under all of the laws of occupation in international law. Israel also does not have the ability in its present status to effectively impose order and to manage civilian life in the Gaza Strip. In the circumstances that have been created, the main obligations incumbent on the State of Israel with regard to the inhabitants of the Gaza Strip derive from the state of hostilities that prevails between it and the Hamas organization that controls the Gaza strip; these obligations derive also from the degree to which the State of Israel controls the border crossings between it and the Gaza Strip, as well as from the connection that was created between the State of Israel and the territory of the Gaza Strip following years of Israeli military rule of the territory, as a result of which the Gaza Strip is at present almost completely dependent upon the supply of electricity from Israel’ (Albassioni v. Prime Minister [15], at para. 12).

The position described in Albassioni v. Prime Minister [15] as aforesaid is also dynamic and variable, and at this time it is not yet possible to draw conclusions with regard to the factual position in the territory of the Gaza Strip and the scope of control of the IDF in the new situation that has arisen. However, it is not necessary to decide this question now, since the state in any case agrees that the humanitarian laws relevant to the petitions apply.

15.  In accordance with the aforesaid, the normative arrangements that govern the State of Israel when it conducts combat operations in the Gaza Strip derive from several legal sources. These legal sources include international humanitarian law, which is enshrined mainly in the Fourth Hague Convention Respecting the Laws and Customs of War on Land, 1907, and the Regulations appended thereto, the provisions of which have the status of customary international law; the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, the customary provisions of which constitute a part of the law of the State of Israel and have been interpreted by this court in several judgments (HCJ 7015/02 Ajuri v. IDF Commander in West Bank [16], at p. 364 {95-96}; Marab v. IDF Commander in Judaea and Samaria [9]; Marabeh v. Prime Minister of Israel [11], at para. 14); and the first Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: “the First Protocol”), to which Israel is not a party, but whose customary provisions also constitute a part of Israeli law (see Public Committee against Torture v. Government [4], at para. 20; CrimA 6659/06 Iyad v. State of Israel [17], at para. 9). In addition to international law, the fundamental rules of Israeli public law also apply (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [18], at p. 810; Ajuri v. IDF Commander in West Bank [16], at p. 365 {96}; Marabeh v. Prime Minister of Israel [11], at para. 14; Public Committee against Torture v. Government [4], at para. 18). According to Israeli public law, the army is liable to act, inter alia, fairly, reasonably and proportionately, while striking a proper balance between the liberty of the individual and the needs of the public and while taking into account security considerations and the nature of the hostilities occurring in the area (see Physicians for Human Rights v. IDF Commander in Gaza [1], at para. 10).

16.  The fundamental provision of international humanitarian law that applies during the conduct of hostilities (in both territory subject to belligerent occupation and territory of the parties to the conflict) is enshrined in art. 27 of the Fourth Geneva Convention, which provides that protected civilians ― whether they are located in territory that is subject to belligerent occupation or territory that is under the sovereignty of the parties to the conflict — are entitled in all circumstances, inter alia, to be treated humanely and to be protected against all acts of violence or threats thereof (see also art. 46 of the Hague Regulations). However, these basic obligations vis-à-vis the civilian population are not absolute; rather, they must be balanced against security considerations and the measures that are required as a result of the hostilities. Alongside this general and basic provision, international humanitarian law contains additional specific obligations that relate directly to the matters raised in the petitions.

17.  Before we turn to the specific laws governing the matters raised in the petitions, we should point out that in practice there is no dispute between the parties with regard to the binding legal arrangements. Everyone agrees that the rules of customary international law — which grant protection to medical personnel and institutions, require enabling the wounded to be evacuated from the site of the hostilities, and also require that the civilian population be protected and its basic rights upheld — apply to the combat activities that are involved in the Cast Lead campaign and are binding on the IDF.

The prohibition against intentionally harming medical personnel

18.  The provisions of international humanitarian law provide protection to medical facilities and staff against attack. Thus art. 18 of the Fourth Geneva Convention provides protection for hospitals; arts. 24-25 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, prohibit any attack upon medical personnel, if they are exclusively or at the time engaged in medical activities; art. 26 of the Fourth Geneva Convention extends this protection to members of the Red Cross or other international organizations that fulfil similar functions (see also art. 20 of the Fourth Geneva Convention). A detailed definition of what constitutes protected medical personnel is laid down in art. 8(c) of the First Protocol, and detailed provisions with regard to the protections that are granted to medical personnel are laid down in arts. 12-16 of the First Protocol.

19.  It is clear from these provisions that international humanitarian law attaches great importance to medical personnel and facilities. Nevertheless, this protection is not absolute, and it will be withdrawn if use is made of medical facilities for non-humanitarian purposes, or if they are exploited for military purposes. In accordance with this principle, medical personnel are entitled to full protection only when they are exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, and similar matters (arts. 24-26 of the First Geneva Convention), whereas the protection of medical facilities will cease if use is made of them, in departure from their humanitarian functions, for the perpetration of acts harmful to the enemy (art. 21 of the First Geneva Convention; art. 19 of the Fourth Geneva Convention). In this regard, in Physicians for Human Rights v. IDF Commander in West Bank [6], at p. 29, the Supreme Court emphasized that the abuse of medical personnel, hospitals and ambulances that sometimes occurs requires the IDF to act to prevent such activity, but it does not per se permit a blanket violation of the principles of humanitarian law, and that ‘this is the position required not only by international law, on which the petitioners rely, but also by the values of the State of Israel as a Jewish and democratic state.’

The duty to allow the evacuation and medical treatment of the wounded

20.  In addition to the protections granted by international humanitarian law to medical personnel and facilities, there are provisions that require the parties to allow the evacuation and medical treatment of the wounded. In this context, art. 16 of the Fourth Geneva Convention prescribes special protection for the sick and wounded, and it requires the parties to the conflict to enable and facilitate searches for and provision of assistance to the wounded and to protect them from improper treatment, as far as military considerations allow:

‘The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.

As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the killed and wounded...’ (Emphasis added — D.B.).

In addition, art. 15 of the First Protocol states that medical personnel should be allowed access to every site where they are needed, subject to supervision and security measures that are essential to the relevant party. In Physicians for Human Rights v. IDF Commander in Gaza [1] the court held in this context that — 

‘The army must do everything possible, subject to the state of the fighting, to allow the evacuation of local inhabitants who were wounded in the fighting’ (ibid. [1], at para. 23).

(See also HCJ 2936/02 Physicians for Human Rights v. IDF Commander in West Bank [19], at pp. 4-5 {37}; Physicians for Human Rights v. IDF Commander in West Bank [6], at p. 29).

The duty to ensure the needs of the civilian population

21.  One of the fundamental principles of international humanitarian law is the principle that distinguishes between combatants and military targets on the one hand and civilians and civilian targets on the other, and grants protection to the latter (see Public Committee against Torture v. Government [4]). Inter alia, the protections granted to the civilian population of all parties to the conflict also include the duty to allow free passage of humanitarian medical supplies, as well as consignments of essential foodstuffs and clothing for children, pregnant women and mothers at the earliest opportunity, subject to a number of restrictions (art. 23 of the Fourth Geneva Convention). Article 70 of the First Protocol provides a more general and broader duty, whereby parties to a conflict are obliged to allow the passage of items that are essential for the civilian population, at the earliest opportunity and without delay. Article 30 of the Fourth Geneva Convention requires parties to a conflict to allow citizens to contact the Red Cross or similar international organizations, in order to receive assistance. In Albassioni v. Prime Minister [15] we considered these provisions explicitly, and we held:

‘The state’s arguments on this matter are based on norms that are a part of customary international law, and that specify basic duties that are incumbent upon combatant parties during an armed conflict and require them to guarantee the safety of the civilian population and to protect its dignity and its basic rights. It is not superfluous to add that according to the rules of customary international humanitarian law, each party to a conflict is bound to refrain from impeding the transfer of basic humanitarian items of aid to the population requiring them in the areas that are under the control of that party to the dispute.’

From general principles to the specific case

22.  The respondents’ position, as it was presented to us in their written statements and in the testimony of Colonel Levy during the hearing, is that they do not deny the obligations enshrined in international law as specified above and as they were interpreted by the court in Physicians for Human Rights v. IDF Commander in Gaza [1]. Accordingly, during the hearing of the petitions Colonel Levy explained the mode of operation of the various mechanisms that the state established in order to discharge the humanitarian obligations binding it, and it discussed the various difficulties with which they must contend due to the complexity of the conflict and the lack of cooperation with the Hamas authorities. These difficulties include, for example, the refusal of the Hamas authorities to allow the IDF to evacuate the wounded for treatment in the territory of the State of Israel, and the cynical exploitation by Hamas of the IDF-initiated humanitarian cessations of hostilities, in order to rearm and carry out attacks against the IDF. From the aforesaid it appears that the dispute between the parties does not relate to the legal arrangements that bind Israel, but rather, the manner in which these obligations are discharged de facto. We shall therefore provide details below of the developments and changes in Israel’s deployment for and ways of dealing with the humanitarian problems that underlie the petitions.

23. Within the framework of the obligations that the IDF confirms are binding upon it, preparations were made — some in advance and some in response to developments in the course of the fighting — to deal with the collateral damage to the civilian population and to provide a response to the humanitarian needs of the local inhabitants. With regard to the various mechanisms that were established and improved during the fighting to deal with the difficulties of coordinating the evacuation of the wounded, the respondents said that on 5 January 2009 a special health operations room was set up, under the command of an officer with the rank of major, who is responsible for providing a response to any civilian population that is in danger, and for coordinating the evacuation of the wounded and the dead from the area where fighting is taking place. Professional matters that arise in the operations room are decided by a doctor, who is an officer with the rank of lieutenant-colonel and who is prepared to receive communications from Palestinian inhabitants, the Palestinian health coordinator, the Red Cross and human rights organizations around the clock. Colonel Levy informed us in great detail, orally and in writing, about the deployment of the officers and soldiers of the District Coordination Office among the combat units, and he explained how the various units communicate with one another to coordinate the evacuation of the wounded and to make it possible for them to be given safe passage by the combat units. Colonel Levy also elaborated on the way in which each body contacts the humanitarian operations rooms that have been set up, and said that upon receiving a request to coordinate the evacuation of a wounded person, the health-related operations room initiates contact with an international organization (the Red Cross operating through the Red Crescent or UNWRA) in order to coordinate the evacuation and the provision of assistance to Palestinian personnel, and the IDF makes the utmost effort to overcome delays in evacuating the wounded — delays which are sometimes caused as a result of the hostilities or damage to infrastructures. With regard to the alleged attacks on medical personnel, the respondents told us that if indeed any medical personnel who were genuinely seeking to provide medical assistance were injured, this was not the result of a deliberate attack on the medical personnel. It was also claimed that quite a few problems have been caused by the conditions in which the fighting is taking place, and Israeli soldiers have similarly sustained serious injuries as a result of friendly fire.

Despite Colonel Levy’s willingness to answer all our questions, it is clear that he lacked information about the various incidents that took place during the evacuation of the wounded, insofar as the extent of the attacks on ambulances and medical personnel was concerned. Nonetheless, the specific case of evacuation for which an order to ensure the evacuation was sought in the petition was resolved during the hearing of the petition; with regard to other cases there is insufficient information at this stage to examine the contentions, and we have asked Colonel Levy to provide us with detailed information concerning the additional cases that were brought before us by the petitioners on the date of the hearing. The alleged use of ambulances and medical facilities by the terrorist organizations to carry out and further combat operations without doubt greatly undermined the coordination of evacuation and rescue operations, and this is to be regretted. But as we said above, the army is obliged to examine each case on its merits and to do all that it can in order to allow the swift and safe passage of ambulances and medical teams to the areas where there are injured and wounded persons requiring treatment.

In view of the establishment and improvement of the humanitarian mechanisms, which it may be assumed will prove their effectiveness; in view of the statement made to us that a serious effort will be made to improve the evacuation and treatment of the wounded; in view of the establishment of a clinic in the vicinity of the Erez crossing (and to the extent that the Palestinian side will also agree to the transfer of the wounded to Israel for treatment), it is to be hoped that the humanitarian mechanisms will operate properly in accordance with the obligations of the State of Israel. In these circumstances, we see no further reason to grant relief in the form of an order nisi at this time.

24.  With regard to the problems of the electricity supply to the Gaza Strip, we were informed that an infrastructures operations room was set up, which is staffed twenty-four hours a day and is under the command of an officer with the rank of lieutenant-colonel, who is responsible for providing a response to infrastructure problems in the combat areas, obtaining an up-to-date picture of the economic situation and coordinating consignments of humanitarian aid to the Gaza Strip. In this respect, the respondents explained that upon receiving a request to coordinate the handling of infrastructure problems, the operations room examines the nature of the problem and its effect on the civilian population, and subsequently, where required, it coordinates the arrival of Palestinian technical personnel at the site of the problem, together with an international organization. With regard to the current position concerning the supply of electricity to the Gaza Strip, we were told at the last hearing of the petitions that, as of the date of the hearing (15 January 2009), nine out of the ten electricity lines that transfer electricity from the State of Israel to the Gaza Strip had been repaired and were operating, and that the remaining line would be repaired. In addition, we were told that there is direct contact between the Palestinian Energy Authority and the Israeli Electric Corporation in order to identify problems and repair them as soon as possible. With regard to the two electricity lines that are transferring electricity from Egypt to the Gaza Strip, the respondents informed us that as of the morning of 13 January 2009 the two lines were intact and operational. We were also told that as of 11 January 2009, the line that transfers electricity from the Palestinian power station throughout the Gaza Strip had been repaired and that the power station had returned to partial operation, with a supply of 50% of the manufacturing capacity of the station. In this respect Colonel Levy told us that in the course of the fighting significant quantities of industrial diesel oil had been brought into the Gaza strip for the use of the Palestinian power station. According to him, the supply of industrial diesel oil was reduced after a tunnel was discovered near the Nahal Oz crossing, containing preparations for a major attack. Nevertheless, and despite the risk, the supply of industrial diesel oil to the Gaza Strip was renewed via the Kerem Shalom crossing. Colonel Levy also told us that part of the fuel waiting on the Palestinian side of the Nahal Oz crossing is not being moved on from there by the Palestinians, because the international organizations have other priorities. He also clarified that the intention is to continue to send industrial diesel oil into the Gaza Strip for the purpose of operating the power station, subject to security constraints. In addition, he said that four trucks containing equipment for maintaining the electricity network in the Gaza Strip entered the Gaza Strip between 9 January 2009 and 12 January 2009 (in this context the petitioners claim in their revised statement that these spare parts were destroyed in an IDF bombardment of the storage facility to which the parts were transported from the Karni terminal, and on this matter Colonel Levy was unable to provide us with any information).

25.  We were informed by the respondents that in addition to the industrial diesel oil that was intended for operating the Palestinian power station, 200,000 litres of diesel oil for transport, 234 tons of cooking gas, water hygiene and purification kits, and bottled water were also brought into the Gaza Strip in the course of the fighting. It was also stated that in order to enable distribution of the humanitarian supplies to the inhabitants of the Gaza Strip, the respondents decided to introduce lulls in fighting in the Gaza Strip for several hours, during which they did not initiate any combat operations. However, exploitation of these lulls by the Hamas organization in order to rearm and carry out shooting attacks sometimes interrupts the transfer of the humanitarian aid. We were also told of the establishment of an operations room for dealing with the international organizations, under the command of an officer with the rank of lieutenant-colonel, which is responsible for coordinating the movement of the workers and vehicles of the international organizations within the framework of their (non-medical) humanitarian work in the Gaza Strip, and for coordinating the transfer of humanitarian donations from international organizations or foreign countries. This operations room is also responsible for obtaining an up-to-date picture of the humanitarian situation, on the basis of reports received from the various international bodies. Finally, we were told that an additional humanitarian operations room had been established in Tel-Aviv, under the command of a reserve officer with the rank of lieutenant-colonel, for the purpose of improving the coordination work in the field of humanitarian aid between the security establishment and the representatives of the international organizations.

26.  From the aforesaid it transpires that steps are being taken to repair the faults in the electricity network in the Gaza Strip, and that despite the state of combat and the security risks, efforts are being made to facilitate the entry into the Gaza Strip of industrial diesel oil for operating the local power station in Gaza, as well as other humanitarian requirements, such as cooking gas, diesel oil, water, food and medications. In these circumstances, this petition too should be denied.

Conclusion

27.  The civilian population is suffering greatly as a result of the IDF combat operations. The operations are taking place in built-up, densely populated areas. Owing to these conditions, many of the victims — hundreds of dead and thousands of wounded — are civilians who were not involved in the dispute and who are paying a high price. Regrettably, children on both sides are innocent victims, suffering the consequences of the intense fighting. The circumstances under which the hearing took place meant that we did not receive all the information that was needed to clarify the position, but it cannot be denied that a strenuous effort should be made to discharge the humanitarian obligations of the State of Israel. It is true that the IDF is fighting against a terrorist organization. That organization does not observe international law; it does not respect humanitarian obligations; there is also no channel of communication with it that might further the implementation of the principles and laws that govern parties involved in armed conflict of the type that is raging here. We appear to be on the verge of a ceasefire; however, the state of conflict is still continuing, and in that state, as long as Israel controls the transfer of essentials and the supply of humanitarian needs to the Gaza Strip, it is bound by the obligations enshrined in international humanitarian law, which require it to allow the civilian population access, to — inter alia — medical facilities, food and water, as well as additional humanitarian items that are necessary for the maintenance of civilian life.

28.  We have heard the petitioners’ claims, and we requested and received detailed responses from the respondents regarding the various humanitarian concerns that were raised in the petitions. It was made clear to us that the IDF and the senior commanders acting in its name are aware of and prepared to carry out their humanitarian obligations. We said in a similar context in Albassioni v. Prime Minister [15]:

‘The Gaza Strip is controlled by a murderous terrorist organization, which acts incessantly to harm the State of Israel and its inhabitants and violates every possible rule of international law in its acts of violence, which are directed indiscriminately against civilians — men, women and children. Nevertheless, as we said above, the State of Israel is obliged to act against the terrorist organizations within the framework of the law and in accordance with the provisions of international law, and to refrain from any intentional attack upon the civilian population in the Gaza Strip’ (ibid. [15], at para. 22).

29.  As we have said, at the time of handing down of this judgment, the combat may be about to end; no-one, however, disputes that the humanitarian aid and rehabilitation work is not yet finished. It is our hope that the state will indeed do its very best to comply with Israeli and international law, in order to alleviate the suffering of the civilian population in the Gaza Strip, which has been seriously affected by the combat. This suffering is a result of the mode of conduct of the cruel terrorist organization that controls the Gaza Strip and operates from within the civilian population while endangering it and abandoning it to its fate. Despite this, even in the face of a terrorist organization whose declared objective is to harm the civilian population of the State of Israel indiscriminately, we shall carry out our duty to uphold the principles and values that are the foundation of our existence as a Jewish and democratic state, which cherishes human rights and humanity.

Subject to all of the aforesaid, the petitions are denied.

Justice E. Rubinstein

1.    I agree with the opinion of my colleague, the President. The combat in which the State of Israel is engaged is not ‘symmetrical’ in the extent to which the parties respect the law. As noted by my colleague, following many years of restraint, Israel was forced into battle in self-defence — lawfully, and in accordance with the Charter of the United Nations and deeply entrenched international law — against those who seek to take our lives. It is difficult to imagine many free world countries holding back for so very long while many of their citizens were subject to the constant — and all too often realized — threat of missile fire, bodily harm and damage to property. The enemy is cynical and cruel, and, beyond its disregard for every established norm, operates within a civilian populace, which regrettably pays the price of its actions. It deliberately and openly directs its weapons indiscriminately at the Israeli civilian population, while our forces are ordered to take every possible measure to avoid harming civilians, as prescribed by binding legal norms.

2.    This court has a responsibility to deal immediately with petitions that raise humanitarian concerns, and so it did in the present case. Often, the role of the court in such cases is to urge and monitor compliance with the provisions of Israeli and international law, even where it knows and trusts that the authorities are unreservedly committed to the appropriate legal framework; it does so, however, from the judicial perspective aimed at capturing the broad picture. There is therefore constant need for judicial review.

3.    My colleague mentioned the difficulty of classifying the battle against terrorism in terms of international law. The international legal system encounters, from time to time, distressing innovations on the part of international terrorism, including the weapons it employs (aided by members of the United Nations, ostensibly committed to international law) and its methods of combat. Steady efforts toward legislation and enforcement notwithstanding, the international legal system has been unable to cope with these constant new challenges. Nevertheless, the State of Israel, probably the most prominent victim of terrorism among the countries of the free world, sees itself — as noted by President Barak in Public Committee against Torture v. Government [4], cited by my colleague — as committed in this conflict to the various aspects of international humanitarian law.

4.    We have become convinced, in hearing these petitions, of the commitment of the military establishment and the political echelon to the pertinent legal norms. This commitment means, in practice, a systematic, unceasing effort at implementation, learning the lessons from difficulties and mishaps in real time, and persistent attempts toward improvement.

5.    Indeed, not infrequently under the current circumstances, the Israeli system finds itself between a rock and a hard place, for, as the President noted, accidents happen in times of war, including injury to our soldiers from friendly fire; on occasion, our battle against the enemy, even when intentions and planning are above reproach, yields tragic cases of harm to Palestinian civilians, among them innocent bystanders, including children — and this fills the heart with grief. Israel, too, has experienced such tragedy, and has seen its own children suffer, and so it deeply regrets casualties on the other side. A concerted effort must be maintained at all levels — and we have no reason to believe that it is not — to restrict lamentable accidents to a minimum, even in evil or inconceivable scenarios.

6.    Finally, as a Jewish and democratic state, we are committed to the norms prescribed by Jewish law with respect to the proper attitude toward human beings created in the image of God in heaven, whoever they may be. The Jerusalem Talmud (Sanhedrin 4:9 [20]) states: ‘Therefore man [Adam] was created alone, to teach you that whoever destroys one person is deemed to have destroyed an entire world, and whoever saves one person is deemed to have saved an entire world.’ And, where matters of life and death are concerned, ‘nothing stands in the way of saving a life, except for idolatry, adultery and murder’ (Tosefta, Shabbat 16:14 [21]). This ethos has accompanied the Jewish people from time immemorial, and will continue to do so in the future.

Justice A. Grunis

I agree with the opinion of my colleague, President D. Beinisch, on the merits of the case. In the circumstances I see no need to address the question of justiciability.         

CrimApp 8823/07

A

v.

State of Israel

The Supreme Court

[4 January 2009]

[24 March 2009]

Before President D. Beinisch, Vice President E. Rivlin, and Justices A. Procaccia, E. Levy, E. Grunis, M. Naor, E. Arbel, E. Rubinstein, S. Joubran

Appeal of a decision of the Jerusalem District Court dated 18 October 2007 in MApp 10116/07, issued by the Honorable Judge H. Ben Ami

Facts: The appellant was arrested on suspicion of membership in an illegal organization, and had been the subject of: a. a decision by the authority in charge to postpone the appellant’s first meeting with an attorney by three days; and b. a decision, rendered two days after his arrest, to extend his detention by an additional ten days. The Jerusalem District Court rejected the state’s request to have the appeal of the detention extension decision deliberated in the absence of the appellant; and the state successfully appealed that decision to the Supreme Court. The appeal against the extension of the detention was thus deliberated in a hearing conducted in the appellant’s absence, in which the appeal was denied. The respondent next requested that the hearing regarding a second extension of the detention be conducted in the appellant’s absence, and in response the appellant argued in the Magistrates Court against the constitutionality of the statutory provision allowing for such a hearing.  The Magistrates Court rejected this argument, and the District Court upheld its decision. An appeal to the Supreme Court followed.

As an arrestee suspected of having committed a security offense, the appellant was subject to the possibility of having detention hearings and appeals thereof held in his absence, pursuant to s. 5 of the Criminal Procedure (Arrest of a Security Offense Suspect) (Temporary Provision) Law, 5766-2006. The constitutionality of this section was attacked indirectly in the appeal originally heard by the Supreme Court, but not considered by the Court because it had not been raised in the earlier stages of litigation. The issue had become moot by the time the case reached the Supreme Court.

Held: (Vice President Rivlin) First, the Court could consider the constitutional issue despite its mootness, in light of the importance of the issue and the likelihood of its recurrence in other situations in which it would also become moot by the time its constitutionality could be determined by the Supreme Court. Next, regarding the substance of the appeal, the right to be present at a criminal proceeding (including at the detention hearing stage) is a core part of the constitutionally guaranteed right to due process, as currently established in the Basic Law: Human Dignity and Liberty. The right applies at all stages of a proceeding, including detention hearings. Because it is a constitutionally protected right, the denial of the right is permissible only if it meets the four conditions established in the limitations clause of that Basic Law. Here, compliance with the first two conditions (a legislative basis, and conformity with the values of the State of Israel) was not in question. The purpose of the section (the enabling of a continuous and effective interrogation of the suspect, without there being a need for an interruption for the purpose of bringing the suspect to court) is an appropriate one, and the third condition is thus met. The constitutional status of section 5 therefore depends on its compliance with the proportionality condition of the limitations clause, which it fails.

Compliance with the proportionality condition has been determined through the use of three sub-tests: a. whether there is a rational relationship between the measure that violates a right and the appropriate purpose it is intended to help achieve (a test which was met here); b. whether the measure involves the least possible violation of the right, in light of the purpose it is intended to achieve; and c. the “narrow sense” proportionality test which requires that the measure be one that creates a violation which is proportionate in terms of the appropriate purpose that is being achieved.

The measure here fails the last two sub-tests because of the depth of the violation involved — it is thus neither a measure that causes the least possible violation, nor is it one that represents a proportionate balancing between a violation of a right and the need to achieve a legitimate purpose. The depth of the violation involved is especially marked, given that the measures described in s. 5 of the Temporary Provision can be combined with a measure established in s. 35 of the Criminal Procedure Law (Enforcement Powers — Arrests), 5756-1996, which establishes the possibility of delaying a meeting between a suspect and his attorney. The suspect can thus be prevented both from appearing in court at a hearing regarding his case, and from meeting with an attorney in order to assist in presenting his case — leading to his utter inability to enjoy due process during the proceedings held in his absence. The section is therefore an impermissible violation of a constitutionally protected right, and the Arrests Law is to be interpreted as if s. 5 had not been enacted.

Justice Naor, concurring in part, wrote that while s. 5 was invalid on constitutional grounds, the Knesset should be given a six month period in which to enact a more proportionate arrangement. Justice Naor considered the option of allowing the provision to stand in cases of a near certainty of frustration of the prevention of harm to human life, but ultimately decided that a full invalidation was necessary because there would always be the potential for disproportionate periods of detention. In Justice Naor’s opinion, the decision that a statutory provision is unconstitutional as a result of its “cumulative effect” when combined with another statutory provision is a complex issue that should be left for further discussion. President Beinisch and Justice Rubinstein took a different view regarding the need for deferment and the utility of a new legislative arrangement, both finding that any alternative proportionate legislation would cover such a small number of cases that it would be pointless. Justice Grunis wrote that alternative legislation could be enacted, but that there was no need to defer the declaration of the section’s invalidity for any period of time; to the contrary, an immediate invalidation would provide an incentive for the legislature to act promptly.

Appeal allowed.

Legislation cited:

Criminal Procedure (Arrest of a Security Offense Suspect) (Temporary Provision) Law, 5766-2006, s. 5.

Criminal Procedure Law [Consolidated Version], 5742-1982.

(Emergency) Defense Regulations — 1945, Reg. 85.

Evidence Ordinance [New Version], 5731-1971, ss. 44, 45.

Basic Law: Human Dignity and Liberty.

Criminal Procedure Law (Enforcement Powers — Arrests), 5756-1996, ss. 35, 38.

Criminal Procedure Regulations (Enforcement Powers — Arrests) (Deferral of a Security Offense Arrestee’s Meeting With Attorney), 5757-1997.

Military Jurisdiction Law, 5715-1955.

Penal Code, 5737-1977, s. 34K.

Rabbinical Tribunals Regulations, 5733, Reg. 57.

Israeli Supreme Court cases cited:

[1]        HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241.

[2]        HCJ 73/85 Kach Faction v. Chairman of the Knesset [1985] IsrSC 39(3) 141.

[3]        HCJ 1581/91 Salahat v. Government of Israel [1993] IsrSC 47(4) 837.

[4]        HCJFH 4110/92 Hess v. Minister of Defense [1994] IsrSC 48(2) 811.

[5]        CrimA 5121/98 Yissacharov v. Chief Military Prosecutor (2006) (not yet reported).

[6]        CrimA 152/51 Trifus v. Attorney General [1952] IsrSC 6(1) 17.

[7]        CrimA 353/88 Wilner v. State of Israel [1991] IsrSC 45(2) 444.

[8]        HCJ 7457/95 Barki Petra Humphries (Israel) v. State of Israel [1996] IsrSC 50(2) 769.

[9]        CrimA 1741/99 A v. State of Israel [1999] IsrSC 43(4) 750.

[10]     FH 3032/99 Baranes v. State of Israel [2002] IsrSC 56(3) 354.

[11]     CrimA 1632/95 Meshulam v. State of Israel [1996] IsrSC 49(5) 534.

[12]     CrimA 951/80 Kanir v. State of Israel [1981] IsrSC 35(3) 505.

[13]     CrimApp 4586/06 Halido v. State of Israel (2006) (unreported).

[14]     CrimApp 1097/06 Bineib v. State of Israel (2006) (unreported).

[15]     HCJ 5016/96 Horev v. Minister of Transportation [1997] IsrSC 51(4) 1.

[16]     HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

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

[18]     CrimApp 1144/06 Ziyad v. State of Israel (2006) (unreported).

[19]     LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist (not yet reported).

[20]     HCJ 5100/94 Public Committee Against Torture in Israel et al. v. Government of Israel [1999] IsrSC 53(4) 817.            

[21]     HCJ 3239/02 Marab v. IDF Commander in Judea and Samaria [2003] IsrSC 57(2) 349.

[22]     HCJ 769/02 Public Committee Against Torture in Israel et al. v. Government of Israel (2006) (not yet reported).

[23]     HCJ 3451/02 Almandi v. Minister of Defense [2002] IsrSC 56(3) 30.

[24]     HCJ 7015/02 Ajuri v. IDF Commander [2002] IsrSC 56(6) 352.

[25]     HCJ 1730/96 Sabiah v. IDF Commander [1996] IsrSC 50(1) 353.

[26]     CrimApp 8473/07 State of Israel v. A (2007) (unreported).

[27]     HCJ 73/53 Kol Ha’am v. Minister of the Interior [1953] IsrSC 7(2) 871.

[28]     HCJ 243/62 Israeli Film Studios v. Gary [1962] IsrSC 16 2407.

[29]     CrimA 6696/96 Kahane v. State of Israel [1998] IsrSC 52(1) 535.

[30]     HCJ 253/88 Sejadia v. Minister of Defense [1988] IsrSC 42(3) 801.

[31]     HCJ 9098/01 Ganis v. Ministry of Building and Housing [2004] IsrSC 59(4) 241.

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

[33]     CrimA 6659/06 A. v. State of Israel (2008) (unreported).

[34]     HCJ 10203/03 “Hamifkad Haleumi” Ltd. v. Attorney General [2008] (unreported).

[35]     HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister (2006) (unreported).

[36]     HCJ 366/03 Society for Commitment to Peace and Social Justice v. Minister of Finance (2005) (unreported).

[37]     HCJ 10578/08 Legal Institute of Terrorism Studies v. Government of Israel (2006) (unreported) 

[38]     HCJ 801/00 Bassam Natshe and The Public Committee Against Torture in Israel v. Erez Military Court (2000) (unreported).

[39]     HCJ 320/80 Kawasme v. Minister of Defense [1980]. IsrSC 35(3) 113.

[40]     HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of the Interior et al. (2006) (unreported).

[41]     HCJ 951/06 Stein v. Police Commissioner (2006) (unreported).

[42]     HCJ 7957/04 Mara’abe v. Prime Minister (2005) (unreported).

[43]     HCJ 7862/04 Abu Daher v. IDF Commander in Judea and Samaria Area [2005] IsrSC 59(5) 368.

[44]     HCJ 9441/07 Igbar v. IDF Commander in Judea and Samaria (2007) (unreported).

[45]     HCJ 1546/06 Gazawi v. Commander of IDF Forces in Judea and Samaria (2006) (unreported).

[46]     CrimApp 10879/05 Al-Abid v. State of Israel (2005) (unreported).

[47]     HCJ 7932/08 Al-Harub v. Commander of the Military Forces in Judea and Samaria (2009) (unreported).

[48]     LCrimA 7284/09 Rosenstein v. State of Israel (2009) (unreported).

[49]     CrimApp 4857/05 Fahima v. State of Israel (2005) (unreported).

[50]     MApp 838/84 Livni v. State of Israel [1984] IsrSC 38(3) 729.

[51]     CrimApp 9086/01 Raviv v. State of Israel [2002] IsrSC 56(3) 163.

[52]     CrimApp 7200/08 Sa’id v. State of Israel (2008) (unreported).

[53]     CrimApp 5114/97 Salimani v. State of Israel [2001] IsrSC 55(2) 721.

U.S. Supreme Court cases cited

[54]     Roe v. Wade 410 U.S. 113 (1973).

[55]     United States v. W.T. Grant Co. 345 U.S. 629 (1953).

[56]     Edgar v. MITE Corp. 457 U.S. 624 (1982).

[57]     United States v. Munsingwear, Inc. 340 U.S. 36 (1950).

[58]     U.S Bancorp Mortgage Co. v. Bonner Mall Partnership 513 U.S. 18 (1994).

[59]     Kentucky v. Stincer 482 U.S. 730 (1987).

[60]     Snyder v. Massachusetts 291 U.S. 97 (1934).

For the appellant — R. Zoabi; D. Halevy.

For the respondent — M. Karshen.

JUDGMENT

Vice President E. Rivlin

1.    The Jerusalem District Court (Judge H. Ben Ami) denied an appeal of two decisions issued by the Jerusalem Magistrates Court: the first was a decision by Judge R. Winograd, to hold a hearing regarding the extension of the appellant’s detention, rendered in the appellant’s absence; the second was a decision issued by Judge D. Pollock to extend the appellant’s detention by an additional eight days. We first note that the issue arising in the appellant’s own particular case — as is the case with deliberations of all cases of a similar nature within this context — became moot long ago due to the passage of time. But this does not bring the discussion to an end, as will be explained below. The appellant argues that the statutory provisions on which the lower courts based their decisions to deliberate the extension of the detention in the arrestee’s absence — s. 5 of the Criminal Procedure (Arrest of a Security Offense Suspect) (Temporary Provision) Law, 5766-2006 (hereinafter, “the Statute” or “the Temporary Provision”) — is unconstitutional in that it violates the Basic Law: Human Dignity and Liberty (hereinafter also: “the Basic Law”). It is this constitutional issue that arose indirectly in the appeal that we face today; because of the nature of the matter, as will be explained below, we have seen fit to hear the case, despite its being a purely theoretical issue with respect to the appellant’s case.

Background and the parties’ arguments

2.    The appellant was arrested on 5 October 2007 on suspicion of membership in an illegal organization (pursuant to Regulation 85(a) of the (Emergency) Defense Regulations — 1945). On 6 October 2007, the authority in charge decided to prevent the appellant’s meeting with an attorney for three days (pursuant to authority established in s. 35 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (hereinafter, “the Arrests Law”) and in the Criminal Procedure Regulations (Powers— Arrests) (Delay of a Security Offense Arrestee’s Meeting With Attorney), 5757-1997)). On 7 October 2007 the Jerusalem Magistrates Court decided to extend the appellant’s detention until 17 October 2007. The appellant appealed this decision and the respondent, on its part, requested that the appeal be heard in his absence, pursuant to s. 5(2) of the Statute. That section is quoted here in full, as follows:

5. Hearing held in the absence of an arrestee suspected of committing a security offense

The provisions of ss. 16(2) and 57 of the Arrests Law, with regard to the presence of an arrestee during deliberations as described in those sections, will apply with regard to the presence of a security offense arrestee during his detention, as stated in s. 4(1), with the following changes:

(1) If the court orders, in the presence of the security offense arrestee, an extension of the detention for a period of less than 20 days, the court may, in the arrestee’s absence, extend his detention for a period that does not exceed the balance of the days remaining until the end of 20 days from the date of the hearing that was held in the security offense arrestee’s presence — if an application for such has been filed with the approval of the supervisor, and if the court has been persuaded that the suspension of the arrestee’s interrogation is likely to prevent the thwarting of a commission of a security offense or hinder the ability to prevent harm to human life;

(2) The court may order that a hearing concerning an application for a rehearing pursuant to s. 52 of the Arrests Law or of an appeal pursuant to s. 53 of the said statute be held in the arrestee’s absence — if an application for such has been filed with the approval of the supervisor, and if the court has been persuaded that the suspension of the arrestee’s interrogation is likely to cause material harm to the investigation;

(3) The provisions of s. 15(c) through (h) of the Arrests Law will apply, mutatis mutandi, to a deliberation about whether to permit the presence of the arrestee in the proceedings described in this section;

(4) A security offense arrestee will be made aware of a court decision reached in a deliberation that was held in his absence as soon as is possible, unless the court orders otherwise at the request of the State’s representative, if the court is persuaded that disclosure to the arrestee is likely to prevent the thwarting of the commission of a security offense or the ability to prevent harm to human life;

The District Court rejected the request for the hearing to be held in the arrestee’s absence, noting that after reviewing the classified report attached to the application, it was not persuaded that the suspension of the interrogation for the purpose of having the arrestee present at the deliberation of the appeal would likely  cause material harm to the investigation. The state appealed this decision to the Supreme Court. The Supreme Court (per Justice Fogelman) granted the appeal. The Court reasoned that ss. 5(1) and 5(2) of the Statute do violate the suspect’s right to be present at his detention hearing. The Court emphasized that the combination of these provisions with the possibility that the suspect may be prevented from meeting with his attorney, “leads to a situation in which, as a practical matter, the respondent’s ability to present his position at the hearing is very limited”. This, the Court noted, constituted a material violation of the arrestee’s right to be present at the deliberation of his case, to defend himself and to present his position. The Court emphasized the severity of this violation in light of the fact that the deliberation dealt with the restriction of a person’s liberty in the form of his arrest —liberty being a basic right protected by the Basic Law: Human Dignity and Liberty.

3. Despite the constitutional context, the Supreme Court did not discuss the argument that the Statute is unconstitutional, because the arguments concerning that issue were first raised only in the context of the appeal, without a proper background having been presented and without the state having been given an opportunity to relate to the issue. The Court therefore discussed only the matter of implementation, and in this connection noted that in light of the violation of the arrestee’s rights, it was necessary to determine that the violation was no greater than absolutely necessary. The Court further noted that the legislature had made a distinction between s. 5(1), dealing with the extension of detention, and s. 5(2), dealing with the deliberation of an application for a rehearing or an appeal. In the first case, the ability to hold the deliberation in the arrestee’s absence is very limited — in fact, this can only be done in a case in which the court “is persuaded that the suspension of the arrestee’s interrogation is likely to prevent the thwarting of the commission of a security offense or hinder the ability to prevent harm to human life”; in contrast, the requirement in s. 5(2) is that the suspension of the interrogation is likely to “cause material harm to the investigation”. The Court also found that, in connection with the implementation of the provisions of the Statute,  consideration must be given to the interest in preserving public welfare and security on the one hand, and on the other, to the need to protect the arrestee’s rights. The court must determine, inter alia, the severity of the harm done to the investigation, the likelihood that such harm will occur, the gravity of the suspicions and the potential danger inherent in the matter under investigation. As Justice Fogelman wrote: “The more severe the suspicions attributed to the arrestee, and the greater the potential danger to public welfare and security that is involved in the matter under investigation, the greater the tendency is towards granting the said request. And the reverse is true as well.”  

Moving from the general to the particular: the Supreme Court, in considering the standard to be applied in the petitioner’s case — i.e., the possibility of “material harm to the investigation” — determined that the evidentiary and intelligence foundation that had been laid before it, which included additional information beyond that which had been presented to the District Court, indicated a high probability that the investigation would be substantively and materially impaired if it was suspended in order to allow the detainee to appear at the hearing  of his appeal. The state’s appeal was therefore allowed, and it was held that the hearing of the appellant’s appeal regarding the extension of his detention could be held in his absence.

4.    On 11 October 2007, the District Court heard the appellant’s appeal regarding the extension of his detention, but without the appellant being present. The appeal was denied. In the meantime, it was also decided that the period during which he could not meet with his attorney would be extended for an additional six days (beginning on 16 October 2007).

In anticipation of the hearing regarding the extension of the appellant’s detention on 17 October 2007, the respondent filed a request to have that hearing held in the appellant’s absence, pursuant to s. 5(1) of the Statute. The appellant, on his part, raised the argument that the statutory provisions on which the respondent relied were unconstitutional and that they should therefore be declared invalid. The Magistrates Court, in its decision dated 17 October 2007, rejected the constitutional argument and held that the Statute satisfies the requirements of the limitations clause of the Basic Law (s. 8 of that Law). The Statute, it was noted, was designed to prevent harm to human life in circumstances in which the suspect is a “ticking bomb” or in which his interrogation could prevent the “explosion of a ticking bomb”. This purpose, it was held, is a proper one. The Magistrates Court added that the violation of the arrestee’s rights caused by s. 5 of the Statute is proportionate — in light of the fact that the first order for the suspect’s detention had been issued in his presence, that the right had only been denied later on (at the point when the court was deciding whether to extend the remand and during the rehearing and appeal), and in light of the high level of proof that the respondent was required to meet in order to establish a ground for applying s. 5(1). Regarding the appellant, the Magistrates Court held that the material that had been presented in his case met the narrow test established in s. 5(1) of the Statute, and that the hearing regarding the request for an extension of the remand could be held in the appellant’s absence. The same day, the Magistrates Court issued another decision, to the effect that the appellant could be detained for an additional eight days (through 24 October 2007).

5.    An appeal was filed with the District Court against all these decisions, and it was denied on 18 October 2007. The District Court also recognized that s. 5 of the Statute violates an arrestee’s basic right — the same as that of an indicted defendant — to be present at his own trial. This violation, the District Court held, has a justifiable purpose, and it is also proportionate: “because, unfortunately, the State of Israel has officially declared a state of emergency and the right to life of the residents of the country hangs in the balance, and it is also beyond doubt that the reasonableness and proportionality requirements have been satisfied.” The District Court also did not see fit to intervene in the specific holdings in the appellant’s case.

An appeal against this decision — the appeal now pending before us— was filed on 21 October 2007. Several general questions were raised in the appeal relating to the constitutionality of s. 5 of the Statute, as were various specific questions regarding the implementation of the section in the appellant’s particular case. Naturally, our case focuses on the constitutional claims. The appellant believes that ss. 5(1) and 5(2) of the Statute violate an arrestee’s right to be present at his trial, as well as his rights to due process, dignity and  liberty. This violation, it is argued, is inconsistent with the provisions of the limitations clause of the Basic Law: Human Dignity and Liberty, particularly when combined with other violations of the rights of a security offender, in particular, of the right to meet with an attorney. The appellant also believes that s. 5 of the Statute conflicts with the State of Israel’s obligations pursuant to international humanitarian law.

When this case was brought to this Court, it was determined that a panel of three judges would deliberate it on the following day. The Court (Justices Arbel, Joubran and Fogelman) noted, in a decision dated 22 October 2007, that the grounds on the basis of which the arrestee was prevented from attending his hearing were no longer valid, and that given this fact, the deliberation of the issue of the appellant’s detention would be returned to the Magistrates Court to be reheard in the presence of the appellant. Nevertheless, the Court held that this Court would deliberate the constitutional matter separately, after the parties had submitted their written positions.    

6.    The respondent, in its written arguments, did not dispute the importance of the right of an arrestee to be present during deliberations regarding his detention. However, the respondent argued that even if the right is a constitutional one — and it raises certain questions regarding that point — its violation within the framework of s. 5 of the Statute is permissible pursuant to the provisions of the limitations clause. The respondent argued that the Statute was enacted in response to the needs of the time, as a means of coping with the security situation prevailing in Israel following, inter alia, the implementation of the disengagement plan and the establishment of the Hamas government in the Gaza Strip. The respondent also argues that s. 5 of the Statute does not conflict with the State of Israel’s obligations pursuant to international humanitarian law and that even if  such a conflict existed, it would not be sufficient to justify a nullification of the Statute.

7.    The case was scheduled to be heard before a panel of three justices in the middle of 2008. Even before the date set for the hearing, a number of human rights organizations submitted a petition to this Court seeking to invalidate the Statute in its entirety on constitutional grounds (HCJ 2028/08 Public Committee Against Torture in Israel v. Minister of Justice). A decision was made to consolidate the two cases and on 27 July 2008, the Court ruled that the deliberation would proceed before an expanded panel. On 4 January 2009, a deliberation was held before the expanded panel, and oral arguments continued on 24 March 2009. In the course of the deliberation held on that date, a majority of the panel decided to review, ex parte, the classified material that the respondent wished to present. After the review, the parties returned to the courtroom and the Court informed them of the main points of the material that had been presented ex parte. Only then did the petitioners in HCJ 2028/08 state that they were withdrawing their petition in light of the decision to review the material ex parte. The petition was therefore withdrawn and only the appeal before us remained in place. As stated, this appeal raises, indirectly, the question of the constitutionality of s. 5 of the Statute.

Theoretical appeal

8.    The appeal before us was filed by a person — the appellant — who believed that he had been harmed by the implementation of s. 5 of the Statute; the appeal attacked the section’s constitutionality indirectly. The appellant raised various arguments regarding the constitutionality of the section in the earlier stages of litigation as well. The earlier panels responded to these arguments by rejecting the contention that s. 5 is unconstitutional (regarding indirect attacks on statutes in trial courts, see A. Barak “Judicial Review of a Law’s Constitutionality: Centralized or De-Centralized,” 8 Mishpat U’Mimshal (Law and Government) 13 (2005)). When the question reached this Court in the context of the appeal of the first round of litigation, it was still relevant to the appellant’s case. However, as indicated in this Court’s ruling dated 22 October 2007, the grounds for the non-appearance of the appellant in court had lost their force before this Court had the opportunity to decide the constitutional issue. The significance of this is that the constitutional issue became moot with respect to the appellant’s specific case. The Supreme Court therefore returned the appellant’s case to the Magistrates Court to be deliberated there in the appellant’s presence. Nevertheless, the Court decided to retain its focus on the constitutional issue.

9.    It often happens that a discussion of a theoretical issue emerges  in the framework of the process of an appeal to the High Court of Justice. The rule is that the Court does not customarily discuss a theoretical issue and it will  prefer to wait until an appropriate specific case arises before it prescribes a particular rule. However, in certain cases, the Court is nevertheless  required to deal with a petition that is only theoretical in nature. Justice Y. Zamir stressed this point in HCJ 6055/95 Tzemach v. Minister of Defense [1]:  

‘There have been instances in which the Court was prepared to discuss a theoretical question, of a general nature, even though it was not connected to a specific case. These were mostly cases in which the petition raised an important question and as a practical matter, the Court could not issue a ruling on it, except when it was presented as a general question that was not connected to a specific case. See, for example, HCJ 73/85 Kach Faction v. Chairman of the Knesset [2], at pp. 145-146; HCJ 1581/91 Salahat v. Government of Israel [3], at p. 841; HCJFH 4110/92 Hess v. Minister of Defense [4].’

In that case, the Court discussed the constitutionality of a provision of Military Jurisdiction Law, 5715-1955, which prescribes the period of time during which a soldier may be detained by a military policeman before being brought before a military judge. The Court held that despite the theoretical aspect of the petitions, they should be deliberated in light of the importance of the question related to the basic principles of the rule of law, the frequency with which the question arises, and the “short life-span” of the issue as a practical question; “it arises when a soldier is arrested by a military policeman; it continues to be relevant for only a few days, until the soldier is released or brought before the military court for an extension of his arrest; and then it expires”. The same point is true, in principle and with the necessary changes, with respect to the instant case.

In this case, there has been no petition to the High Court of Justice that attacks the Statute’s constitutionality directly. As stated, the petition submitted by the human rights organizations has been withdrawn. What remains before us, therefore, is an individual appeal that raises the constitutional issue only indirectly. However, it seems to me that for the purpose of the question that we are to decide here, we need make no distinction between the two situations, and in appropriate cases it is proper to discuss a fundamental-constitutional question that has been raised indirectly in a specific case even if it has been rendered moot with respect to the specific appellant. Indeed, if the constitutional question had lost its relevancy with respect to the appellant during the earlier proceedings, the lower courts might not have considered it, and the appropriate way for the appellant — if he had wished to present a fundamental question regarding the Statute’s constitutionality — would have been to petition this Court. I note in this context that in certain respects, the indirect attack is the most appropriate manner in which to test the constitutionality of a statute’s provisions, and an appeal of the type presented here, even if it has become theoretical since the time it was originally brought, is an appropriate manner in which to present a constitutional question to the Supreme Court.

10.  It should be noted that the federal courts in the United States follow a rule (known as the mootness doctrine) according to which a claim must be dismissed when a judicial decision will no longer have any effect on the rights of the parties to the proceeding and the only question remaining before the court is one that is purely hypothetical or academic. The courts have recognized a number of exceptions to this rule. The first applies when there is an expectation that the legal question under discussion will arise again in the future, with regard either to the parties to the specific proceeding or with regard to others, although — because of the question’s temporary character — it will always become a purely theoretical question during the time required for the question to be adjudicated. Thus, for example, in Roe v. Wade [54], which dealt with the right to an abortion, the United States Supreme Court held that although its decision would not impact on the specific appellant’s rights — the appellant having given birth already as the proceedings in the case had continued — it would be inappropriate to deny the appeal on the basis of the mootness doctrine because the problem of potential mootness was inherent to the issue of the constitutionality of a prohibition against abortions, in the sense that legal proceedings would never be relevant with respect to the actual parties for more than the nine months of a pregnancy. A second exception to the doctrine arises when a defendant ceases to engage in a wrongful activity due to the initiation of the legal proceeding, but a need remains to deter the party from returning to such wrongful activity in the future. In such a case, the concern arises with respect to the possibility that the defendant has discontinued the questionable actions as a strategic measure only, in order to lead to the dismissal of the claim brought against it, and will afterward return to its earlier path (see, for example — United States v. W.T. Grant Co. [55]). An additional exception applies when a rejection of the complaint on the basis of the mootness doctrine is likely to expose one of the parties to criminal proceedings or to a civil claim (Edgar v. MITE Corp. [56]).

In some cases, it may still be important, even when a claim has become theoretical at the stage of an appeal, to overturn the trial court’s ruling in order to deny precedential value to that ruling and remove any possible implications for future proceedings between the parties. In the American legal system, this remedy is known as vacatur, and its significance is that it nullifies the lower court’s decision completely. One of the key considerations in determining whether this remedy should be used is whether the claim had become moot due to a voluntary waiver of claimed rights by the appellant at the appellate level (such as in the case of a settlement) or whether it had become moot because of changes in circumstances that are external to the parties or because of an independent move made by the respondent at the appellate level. (See United States v. Munsingwear, Inc. [57]; U.S Bancorp Mortgage Co. v. Bonner Mall Partnership [58]. See also the Israeli Supreme Court’s decision (per President Beinisch) in CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [5]).

11.  In the case before us, there is no need to establish a fixed rule regarding any of these matters. Given the development of the situation in our case, it is of no real consequence whether a distinction is drawn between a direct attack and an indirect one, since the case became theoretical after it was brought before the Supreme Court. And indeed, as stated, the Supreme Court held on 22 July 2007 that the constitutional question, which from the beginning had been raised only indirectly in the context of the specific matter, remained an open question in the case. It is clear that the constitutional question remains a valid issue vis-à-vis all potential parties because a decision regarding the matter will constitute a binding precedent..

We must now deal with the constitutional question on a substantive level.

The temporary provision

12.  The government’s draft law establishing special powers relating to the arrest of security offense suspects, was published toward the end of 2005 (Draft Criminal Procedure Law (Enforcement Powers — Arrests) (Non-Resident Arrestee Suspected of Security Offense — Temporary Provision) 5766-2005, Draft Laws 206). This Draft Law granted powers regarding arrestees who are not residents of Israel and who are suspected of having committed security offenses (according to a list of such offenses set out in s. 1 of the Draft Law). The explanatory material stated that the interrogation of a security offense arrestee, which is conducted for the purpose of bringing the arrestee to trial and thwarting terrorist activity, has special features that justify the grant of special powers to the enforcement authorities.

Among these special features, the explanatory material lists the following — first, regarding an arrestee who prior to his arrest was not a resident of the State of Israel, the investigating authority will have only a limited ability to collect evidence and establish a factual background, as compared to the ability to do so with respect to those who are residents of the State. Second, when the offense involved is a security offense, potential witnesses — when there are any — often do not cooperate for ideological or nationalistic reasons—; this is because of the sympathy such witnesses have for the suspects, or because they are hostile to the State of Israel. The nationalistic or ideological motive — it is further argued — generally means that those being interrogated are themselves uncooperative, and it is therefore necessary to conduct the interrogation for a more extended and uninterrupted period than is usually the case, so that the interrogators can arrive at the truth. Third, some of the interrogations must be held continuously and without interruption, especially at an initial stage, so that the investigating authorities can thwart terrorist attacks before they are carried out.

The explanatory material indicated that the need to grant broader enforcement powers in connection with the interrogation of a security offense arrestee who is not a resident of Israel is also derived from the fact that since the end of the military administration in the Gaza Strip, the investigative authorities can no longer exercise the powers that they previously could pursuant to security legislation enacted by the commander of the IDF forces in the region.

The Draft Law therefore included provisions that expanded the powers of the enforcement authorities beyond the regular powers established in the Arrests Law. Thus, the Draft Law contained provisions that extended the period of time before an arrestee must be brought before a judge, the duration of a detention that can be ordered ex parte, the period of time allowed before an indictment must be brought, and the period of time during which the arrestee may be prevented from meeting with an attorney. The Draft Law also included — as is relevant to this case — a provision that allowed the court to hold a detention hearing without the arrestee being present. Regarding s. 6 of the Draft Law, which is now s. 5 of the Statute, the explanatory material included the following:

‘The right of a person to be present in the court that hears his case is  a very important right under the Israeli legal system, and certainly when the matter involves his detention. It is nevertheless the case that the removal of a security offense arrestee from the interrogation facility for the purpose of bringing him to court can, in certain cases, do serious damage to the interrogation and at times can even lead to the frustration of its purpose. Under these circumstances, it is necessary to balance the protection of the rights of the arrestee against the need to allow the enforcement authorities to carry out their investigative activities continuously, in a manner which leads to the thwarting of terrorist activity or otherwise prevents a danger to human life and the security of the public.’

The law that was eventually enacted is broader than the proposed Draft Law, in the sense that it applies to any person suspected of committing a security offense — whether or not such person is a resident of the state of Israel. In other ways, the law is narrower in scope than the Draft Law — for example, with regard to the type of security offenses to which it applies. The Statute, as currently worded, includes a number of key components. One component deals with the extension of time during which it is permissible to delay the arraignment of a security offense arrestee before a judge — 96 hours instead of the 24 hours or 48 hours provided in the Arrests Law (s. 3). A second component grants the court the power to extend the detention of a security offense arrestee for a period of no more than 20 days, each time — instead of the 15 day period prescribed in the Arrests Law (s. 4(1)). A third component extends the period of time regarding which an application for an additional arrest will not require approval of the Attorney General — up to 35 days, instead of 30 days as established in the Arrests Law (s. 4(2)). The fourth component relates to the matter that arises in the instant case — the holding of detention hearings in the absence of the arrestee (s. 5). The Statute further provides (in s. 6) that the arrestee must be represented by defense counsel at a hearing pursuant to s. 5. The Statute also includes provisions that require reports concerning the implementation of the Statute (s. 8) from the Minister of Justice to the Knesset’s Committee on the Constitution, Law and Justice.

13.  The provisions of the Draft Law, which originally applied only to arrestees who were not residents of the state because of the special difficulties involved in interrogating such arrestees and in collecting information about them, were eventually consolidated into a piece of legislation that applied to all security offense suspects. This legislation established various powers that were mainly intended to enable a more continuous interrogation of such suspects, and to minimize “interruptions” and delays in the interrogation process. The legislation narrows the power of the Attorney General and the court to review an arrest in such cases, and limits the arrestee’s ability to object to the arrest. The main objective of these measures is to improve the enforcement authorities’ ability to carry out effective interrogations regarding security offenses, given the special characteristics of such offenses. The main difficulty in these cases arises in connection with the gathering of information and the need to take action in order to thwart acts of terrorism. The Draft Law and the Statute both reflect the fact that those involved in this work wished to establish a balance between these objectives and the rights of the suspects. In the words of the explanatory material:

‘The provisions of the law reflect a consideration of the required balance between the guiding principles of the Israeli legal system regarding suspects’ rights in criminal proceedings — on the one hand — and, on the other hand, he law enforcement authorities’ special need for broader powers with respect to security offense arrestees, because of the danger they pose and the special characteristics of their interrogation.’

14.  Eighteen months before the Temporary Provision was set to expire, the Knesset decided (on 18 December 2007) to extend it for an additional three years, while introducing certain minor changes to the Knesset reporting mechanism. The explanatory material to the Draft Criminal Procedure (Arrestee Suspected of a Security Offense) (Temporary Provision) (Amendment) Law 5765-2005, SH 340, includes the following:

‘During the period in which the law has been in force, it has been found that the provisions established in it were most essential to the law enforcement authorities involved in the investigation and thwarting of terrorist offenses, and that the use of the powers established therein were often helpful in thwarting terrorist attacks, finding offenders, and bringing them to trial. It should be noted that the security forces have used the special provisions established in the law proportionately and cautiously — using them only in cases in which they were needed in order to achieve the said purposes.

It should also be noted that the need for the Statute became even more essential after the Hamas organization came to power in the Gaza Strip.’

The significance of this is that the Temporary Provision will remain in effect until at least 29 October 2010.

The constitutional right to be present at one’s criminal trial and detention proceedings

15.  The appellant argues, correctly, that the Temporary Provision violates fundamental rights that are protected by the Basic Law: Human Dignity and Liberty. It is a basic rule of criminal law that no person may be judged other than in his presence. This rule is anchored in the Criminal Procedure Law [Consolidated Version], 5742-1982, which provides that “[e]xcept as otherwise provided in this law, no person will be criminally tried in his absence”. This rule expresses the right of any defendant to be present at his criminal trial — a presence which is “essential”, as was noted in CrimA 152/51 Trifus v. Attorney General [6], at p. 23. This Court has reiterated the importance of the defendant’s right to be present at his trial. A court’s obligation to respect that right, it has held, “is one of the most basic obligations in terms of maintaining the appearance of justice and regarding the holding of proper proceedings” (CrimA 353/88 Wilner v. State of Israel [7], per Justice Mazza at p. 450). The right of a defendant to be present at his own trial, it was held, ensures that “a defendant will not be tried ‘behind his back’ and that he will be given the opportunity to face the prosecution’s evidence and to put forth his defense” (HCJ 7457/95 Barki Petra Humphries (Israel) v. State of Israel [8], per Justice Dorner at p. 775).

16.  Is the right of a defendant to be present at his trial — which all agree is an important fundamental right — also a constitutional and supra-constitutional right? It is. The Supreme Court has recognized the right to due process as being a protected constitutional right, at least with regard to some of the components thereof. “The Basic Law,” it has been held, “has fortified the defendant’s right to a fair trial. This is done in s. 5 of the Basic Law, which anchors the right of each person to liberty, through the constitutional recognition of human dignity, of which the defendant’s right to a fair trial is a part” (CrimA 1741/99 A v. State of Israel [9], per Justice Turkel at para. 3). Indeed, the right to the core elements of due process is an essential element of the defense of liberty. The right to liberty is a fundamental constitutional right:

‘Personal liberty is a first tier constitutional right, and it is, as a practical matter, a necessary condition for the exercise of all other basic rights. The violation of personal liberty, like a stone thrown into a body of water, creates a ripple effect, widening the circle of violations of additional basic rights: violations of not only the right to freedom of movement, but also of the right to freedom of expression, and of the rights of individual privacy and of property and of additional rights as well. . . . Only a person who is free can fully and properly exercise his basic rights. And personal liberty, more than any other right, is what makes a person free. For that reason, the denial of personal liberty is an especially severe violation’ (Tzemach v. Minister of Defense [1], per Justice Zamir at para. 17).   

Moreover, the right to due process is closely tied to the right to dignity, since the denial of due process “may also harm the accused’s self-image and give him a feeling of degradation and helplessness, as if he is a plaything in the hands of others, to the extent that there is a violation of his constitutional right to dignity under ss. 2 and 4 of the Basic Law” Yissacharov v. Chief Military Prosecutor [5], per President Beinisch at para. 67). Thus, “the Basic Law: Human Dignity and Liberty, enacted in 1992, recognized the right to due process in the criminal law context as having the status of a protected constitutional right. This recognition is accomplished primarily through s. 5 of the Basic Law, which establishes the right to liberty, and through ss. 2 and 4 of the Basic Law, which establish the right to human dignity. In s. 11, the Basic Law obligates all the branches of government — legislative, executive and judicial — to honor the rights established in the Basic Law” (RT 3032/99 Baranes v. State of Israel [10], at p. 375).

17.  The above discussion demonstrates that the right to those core elements of due process that relate to the protection of liberty and dignity is a protected constitutional right. The defendant’s right to be present at his trial is a core element of the right to due process, and it is therefore a protected constitutional right pursuant to the Basic Law. Justice Dorner has noted the connection between the right to due process and the right to be present at one’s own criminal trial:

‘As a rule, there is an overlap between the right to be present and the public interest in the holding of a fair trial. Indeed, the defendant’s presence upholds the image of justice and ensures an effective defense against incriminating evidence, and thus enables proper clarification of the facts’ (CrimA 1632/95 Meshulam v. State of Israel [11],  at p. 547).

Indeed, the right to criminal due process is a broad right that includes various derivative rights. Among these rights is the right of a defendant to be present at his trial. President Beinisch noted this, as follows:

‘[T]he right to a fair criminal trial is a multifaceted right, which may serve as a basis for deriving many of the procedural rights of the person under interrogation, the suspect and the accused in criminal proceedings. Without exhausting the issue, we should point out that in foreign legal systems that are similar to our own and even in international conventions, the right to a fair criminal trial includes the right of the accused to know why he was arrested and what are the charges against him, the right to be represented by a lawyer, the right to be present at the trial, the right to an open trial by an unbiased and neutral tribunal and the right to defend himself at the trial and to present relevant evidence. The aforesaid right also includes the presumption of innocence, the principle of legality and the prohibition of placing the accused in double jeopardy of a conviction for the same act’ (Yissacharov v. Chief Military Prosecutor [5], per President Beinisch at para. 66, emphasis added).

The right of a defendant to be present at his trial is an important condition for “ensur[ing] a fair procedure and proper procedural safeguards for the fairness of the criminal trial vis-à-vis the accused” (ibid. [5], at para. 66). This right is not only the right of the individual — it is also an expression of a general public interest in maintaining a criminal justice system that determines a person’s fate only in accordance with due process, in a proceeding in which a defendant is given a full opportunity to present a defense (see CrimApp 2043/05 State of Israel v. Zeevi [12], per Justice Procaccia at para. 12). Indeed, the exercise of a defendant’s right to be present at legal proceedings helps to ensure the accuracy and effectiveness of a proceeding whose purpose is to determine the truth. Although it is frequently the case that a criminal proceeding is carried out through agents and representation by attorneys, and the voice of the individual on trial is not heard in the courtroom (or is at least heard only as a whisper) — this does not minimize the importance of the defendant’s presence at his trial, and particularly the importance of the defendant at his criminal trial. A person has an interest in protecting his own position, and desires to be present at the proceeding in which his fate will be determined. If he is prevented from being present, there may be a diminution of justice, because of the possible impact on the defendant’s ability to defend himself. The legal proceeding does not deal with elements that are absent — it deals with elements that are present. Generally, it is appropriate that a defendant should experience, with his own senses, the criminal proceeding. It is fitting that the judge should see, with his or her own eyes, the individual who is on trial. All these are built-in components of the legal process and important conditions for maintaining the defendant’s faith and that of the public in the criminal process. In light of all these factors, it is not surprising that President Barak has directed that the defendant’s right to be present at his own trial is a “constitutional right” (Humphries (Israel) v. State of Israel [8], at p. 780).

18.  It should be noted that the right of every individual to be present at his own criminal trial is also recognized in other legal systems. In the United States it is understood to be an inseparable part of criminal due process (see J. Boeving, “The Right to be Present Before Military Commissions and Federal Courts: Protecting National Security in an Age of Classified Information,” 30 Harv. J.L. & Publ. Pol’y 463 (2007). There, the right is anchored in the Confrontation Clause of the Sixth Amendment to the Constitution, pursuant to both the due process clauses of the Fifth and Fourteenth Amendments and pursuant to s. 43(A)(2) of the Federal Rules of Criminal Procedure, which provides that a defendant must be present at all stages of his trial. Within this normative framework, the right to be present at trial has been analyzed as both part of the ability to hold an effective cross-examination, and, more broadly, as part of due process. The obligation to maintain this right, it has been held, remains in place, for so long as the defendant’s presence can contribute to a just proceeding. The courts have, however, recognized that it may be permissible to hold a hearing when the defendant is not present, if his presence at the proceeding serves no purpose and will do nothing to assist in his own defense (see Kentucky v. Stincer [59]; Snyder v. Massachusetts [60]).

19.  Does a suspect or arrestee also have a constitutional right to be present at his detention hearings, as part of the right to due process? I believe that he does. As a rule, the right to criminal due process applies to all stages of the criminal proceeding — “both at the interrogation and at the trial stage” (CrimA 951/80 Kanir v. State of Israel [12], per Justice Barak at p. 516; Yissacharov v. Chief Military Prosecutor [5], per President Beinisch at para. 66). These words apply especially with regard to a hearing regarding detention, which is “the most difficult form of violation of personal liberty” (Tzemach v. Minister of Defense [1], per Justice Zamir at para. 17). The detention hearing itself is a proceeding that involves a serious violation of the rights of the suspect or defendant. Effective judicial review is an inseparable part of a detention hearing that complies with constitutional requirements. Thus, the need to maintain due process in the context of a detention hearing is a fundamental constitutional right which is necessitated by the need to protect the right to liberty and dignity. The presence of the suspect or defendant at a detention hearing is part of due process; this right to be present at the detention hearing is anchored in ss. 16(2) and 57 of the Arrests Law and also constitutes — in light of the reasons listed above — a constitutional right which is protected by the Basic Law (see also CrimApp 4586/06 Halido v. State of Israel [13], opinion of Justice Hayut; regarding the care to be taken in implementing s. 57 of the Arrests Law, see CrimApp 1097/06 Bineib v. State of Israel [14], opinion of Justice Rubinstein).

20.  The importance and longevity of the principle regarding the arrestee’s physical presence in court is indicated by the doctrine whose name indicates its logic — habeas corpus (“bring the body”). This common law doctrine allows the court to be petitioned to issue an order by which the authorities are directed to bring before the court a person who has been imprisoned by those authorities, so that he can be released if it discovered that the arrest was illegal. This power, which in Israel is conferred on the High Court of Justice, reflects the fundamental perception that the court that is deciding the matter of a person’s liberty will generally be required to see the person and hear his arguments regarding the legality of his detention.

21.  The respondent does not deny that the arrestee’s right to be present at the proceedings for an extension of his detention is an important fundamental right, as defined, and that this right’s importance is derived from reasons that are similar to those that form the basis of the defendant’s right to be present at his own trial. Nevertheless, the respondent argues, the former right is not the same as the latter one — because there is a built-in violation of important rights at the interrogation stage, due to the need to determine the actual truth. Thus, for example, a person’s liberty may be denied initially on the basis of a lower evidentiary standard; the suspect is also not exposed to the main elements of the evidence that is being brought against him. In light of this, the state argues that it is not possible to have an “ideal exercise of the right to due process” at the interrogation stage. It further argues that because at that stage, main elements of the evidence are not disclosed to the suspect, his absence at the detention hearing will not cause any great violation of his rights; this is especially so with respect to a security offense suspect, regarding whom it is often the case that the evidence will be presented to the court ex parte.

I have difficulty accepting this argument. The respondent seems to suggest that it is easier to add another violation, to a situation in which there is already a violation of other rights. But this is not correct. The balance between human rights and other rights and interests is delicate and sensitive. As the respondent correctly notes, the criteria that are applied at the interrogation stage and at the stage of the initial detention are different in certain respects from those that apply at other stages of the criminal proceedings. At these earlier stages, there are also — alongside the possible restriction of the suspect’s or arrestee’s ability to defend himself — various protective mechanisms (for example, the periods of time during which the suspect may be detained during the interrogation stage are shorter, and there is close judicial supervision of the proceedings). However, each additional violation of the suspect’s/arrestee’s rights, particularly when it is expressed by a limitation of the ability to maintain judicial supervision, can undo the balance and undermine the fairness of the process. To the contrary, it is particularly in a proceeding in which there are increased restrictions on the suspect’s/arrestee’s ability to defend himself and to respond to the charges levelled against him that it is necessary to take an especially protective stance against the addition of further difficulties, and against the suspect’s further exclusion from the process. I will return below to the specific argument relating to the existing legal restrictions that apply to security offense suspects, and their implications for the determination of the constitutionality of s. 5 of the Temporary Provision.

In summation, s. 5 of the Temporary Provision violates the right of a security offense suspect to be present at his own detention hearing.

22.  Indeed, the right to due process, including the arrestee’s right to be present at his detention hearing, is not an absolute right. It should be noted that s. 16(2) of the Arrests Law makes it possible for a detention hearing to be held in the arrestee’s absence if the arrestee cannot attend the hearing because of the state of his health (see also s. 57 of the Arrests Law, regarding the deliberation of a petition for a rehearing and appeal). The Supreme Court has recognized the possibility that the arrestee himself, may, in certain cases, waive his right to be present at trial (Humphries (Israel) v. State of Israel [8]). In terms of the constitutional aspect, person’s right to be present at the proceedings involved in his own case may be restricted pursuant to a law that complies with the tests established in the limitations clause — s. 8 of the Basic Law. The limitations clause allows for a violation of the right to due process if all the following four conditions are met: the violation is prescribed by a law or pursuant to a law, by virtue of an authorization that is expressly established in the law; the law that creates the violation conforms with the values of the State of Israel; the objective of the law that creates the violation is an appropriate objective; and the violation is not greater than           is necessary. In our case, the main question relates to the last condition — the proportionality condition — and we will therefore focus on that requirement. However, before we reach that point, we must examine and describe the statute’s objective, in light of the close connection between a legislative objective and the means that are designed to be used for achieving that objective.

The objective of the Temporary Provision

23.  The key objective of the Statute, as stated, is to improve the ability of the enforcement authorities to carry out an effective interrogation in connection with security offenses, taking into consideration the special characteristics of these offenses, including the difficulty involved in gathering information and the need to take action to thwart terrorist attacks. This is also the objective of s. 5, the constitutionality of which we are examining in the instant case. As stated, the Draft Law originally focused on arrestees who had not been residents of the State of Israel prior to their arrests, and the reason given for this focus was that  the investigative authorities have a relatively limited ability to gather evidence and information with regard to this class of arrestees. By the time the Temporary Provision was enacted in its final form, the above-mentioned distinction had been removed, and the Statute was written so as to apply to all security offense suspects — regardless of whether or not they are residents of Israel. It has been argued before us that as a practical matter the Statute is used only against Palestinian suspects and that this reflects a violation of the right to equal treatment, but this issue was not sufficiently discussed in the framework of the proceeding here, and in light of the conclusion that we have reached, we see no need to expand on this particular issue.

24.  The main emphasis of the Temporary Provision and of s. 5 in particular, is the need to carry out a quick, continuous and effective interrogation. The respondent explains that the General Security Service’s main and central purposes in carrying out interrogations in connection with security offenses are to discover terrorist organizations and to thwart future terrorist attacks. An interrogation of this type, which looks to the future, must be carried out quickly so as to — among other things — prevent planned terrorist acts in time, or to locate and catch additional terrorists, weapons and explosive materials, all before they can be transferred to a new hiding place. The respondent also informed us, ex parte, of the operational elements, which, according to the respondent, necessitate a proper, continuous and quick interrogation — one that is carried out without delay or interruptions. The respondent also described, primarily in the arguments that were made ex parte, the special methods that characterize this type of interrogation; these methods require time and an uninterrupted interrogation.

Section 5 meets this objective, the respondent explained, as it is often the case that the need to bring a security offense suspect to court will hamper the interrogation of the suspect and may even hinder its purpose completely. The extension of a security offense suspect’s detention in his absence makes it possible, in appropriate cases, to carry out the interrogation continuously and quickly, using special interrogation methods.

25.  In light of these explanations, we can state that s. 5 was enacted in order to achieve an appropriate purpose. Nevertheless, we must note the restrictions to which this appropriate purpose is subject. The instant case deals with the interrogation of those suspected of criminal offenses. The framework in which the suspect’s detention is being sought is a criminal framework. Although this is a special context which presents unique challenges, such uniqueness does not justify an avoidance of the fact that in all these cases the suspect is being questioned regarding his own involvement in security offenses. During the interrogation, a suspect may be asked questions relating to future terrorist activity — but this does not mean that these are “preventative arrests” only, since the interrogation and the detention must rest on grounds relating to the suspect’s involvement in security offenses. With respect to this issue, an arrestee falls within the category of a suspect, and his rights as a criminal suspect must therefore be protected.

 In light of this, and in light of our holding that the Statute does have a proper purpose, we can now turn to the question of its proportionality.

Proportionality

26.   Pursuant to the provisions of the limitation clause, a law that violates the right to due process — and such is the Statute that we are examining here — will be constitutionally valid only if the violation it entails is no greater than is necessary. The question raised here is whether the means chosen by the legislature is proportionate in relation to the Statute’s proper purpose. The case law in Israel, as well as in other legal systems, has examined proportionality on the basis of three sub-tests, which serve to concretize the general standard (see HCJ 5016/96 Horev v. Minister of Transportation [15]). The three sub-tests are the following: the rational relationship test, referring to the relationship between the means chosen and the violation of the right which is involved and the statute’s purpose; the minimal violation test; and lastly — the proportionate means test, within the narrow meaning thereof (Professor E. Bendor has called this the relativity test). President Barak discussed these tests in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [16], at p. 385:  

‘The first sub-test is that of a rational correlation or connection. A legislative measure that violates a constitutional human right —in our case, one that violates the right to freedom of employment — is permissible if there is a correlation between it and the achievement of the purpose. A correlative relationship is required between the purpose and the means. The legislative means must lead, in a rational manner, to the achievement of the statutory purpose . . . ; the second sub-test is the test of whether the means involve a minimal infringement. A legislative measure that violates a constitutional human right — in our case, one that violates the right to freedom of employment — is permissible only if the statutory purpose cannot be achieved through some other measure that leads to a lesser violation of the human right . . . the legislative measure can be compared to a ladder, which the legislature climbs in order to achieve the legislative purpose. The legislature must stop on the rung at which the legislative purpose is achieved, and on which the violation of the human right is the least. “The legislature must begin at the ‘rung’ that causes the least infringement and move up the rungs slowly, until it reaches the rung at which the proper purpose is achieved without infringing more than necessary on the human right” . . . “If under the circumstances of the case the moderate measure, the measure that causes the least damage, is not sufficient to achieve the purpose, the authority may prescribe a more severe provision, to the extent necessary to achieve the purpose” . . . . The third sub-test is the proportionate measure test (in the narrow sense thereof). Even if the measure that has been chosen is appropriate (rational) for the achievement of the purpose, and even if there is no more moderate measure, there must be a proper relationship between the benefit achieved from the use of the measure to the scope of the violation of the constitutional human right . . . this test examines the result of the legislation, and the effect it has on the constitutional human right. If the use of the legislative measure causes a severe violation of a human right, and the expected public benefit to be achieved from such violation is minimal, it is possible that the legislation is disproportionate (in the narrow sense)’.

In our case, we have been persuaded by the material presented to us that there is a correlative relationship between the achievement of the Statute’s purposes and the use of the measure that consists of preventing an arrestee from being present at his detention hearing. Section 5 itself provides that the arrest may be extended without the arrestee being present only when the court “has been persuaded that the suspension of the arrestee’s interrogation is likely to prevent the thwarting of a commission of a security offense or hinder the ability to prevent harm to human life” (sub-section (1)); and that the hearing of a petition for a further hearing or for an appeal can be held in the arrestee’s absence only when the court is “persuaded that the suspension of the arrestee’s interrogation is likely to cause material harm to the investigation” (sub-section (2)). Thus, s. 5 itself creates a connection between the violation of the right and the realization of the objective of carrying out an effective interrogation for the purpose of thwarting the commission of security offenses and preventing harm to human life. Indeed, the interruption of an interrogation for the purpose of having the arrestee appear in court is likely to cause difficulty for the interrogators. As we have been told, it can disrupt the implementation of a particular interrogation method. It can therefore be said that there is a rational relationship between the need to prevent the interruption of an interrogation (for a specific period of time) and the achievement of the objectives of the interrogation.

27.  Nevertheless, we have not been persuaded that the means prescribed in s. 5 will cause only a minimal violation, or that the section presents a proper balance between the violation of the right to due process — in the sense that this right is embodied in the arrestee’s presence at detention hearings — and the achievement of the objectives of the interrogation. Viewed cumulatively the following elements form the basis of our position regarding this matter.

28.  The first element relates to the scope of the violation of the right to due process and of effective judicial supervision. The violation of the right to due process which the operation of s. 5 of the Statute can cause is severe. The arrestee’s presence at his detention proceedings is, as stated, a key element of the realization of his right to due process. When he is absent from the proceeding, a concern arises that his ability to defend himself against the claims that establish the ground for his arrest will be impaired, along with his ability to argue before the court about the terms of his detention and the manner in which the interrogation is being carried out. This absence also denies the court the ability to look the arrestee in the eye and to take note of his condition. The severity of this concern increases greatly when the suspect is detained in connection with a security offense — since, in such cases, the suspect’s ability to defend himself at the detention hearings is restricted by various additional measures that can be used against him.

The provisions of s. 38 of the Arrests Law should be noted in particular. This section provides that an arrestee who is suspected of having committed a security offense may be prevented from meeting with a lawyer when such meeting is likely to disrupt the arrest of other suspects, interfere with the discovery or seizure of evidence, or disrupt an interrogation — or when the prevention of such a meeting is necessary in order to thwart the commission of a crime or in order to preserve human life. “The prevention of a meeting between an arrestee and his attorney” — it has been held — “is a serious violation of the arrestee’s right. This violation is tolerated only when it is essential from a security perspective and necessary in terms of the conduct of a successful interrogation” (HCJ 6302/92 Rumhiya v. Israel Police [16], at p. 13). The combination of the provisions regarding the prevention of a meeting with an attorney with the provisions that are the subject of the constitutional examination here is likely to deny an arrestee any possibility of presenting a position to counter the government’s stand regarding his detention. At the same time, it eliminates the court’s ability to exercise any effective control over the interrogation or the detention for the purpose of interrogation. Justice Fogelman noted this in the judgment rendered in the appellant’s case:

‘A hearing which is not held in the presence of the arrestee is not an ex parte hearing, since the arrestee may, it would seem, argue his case through his counsel. At the same time, in the case before us (and as may be presumed, in other cases in which the powers granted pursuant to the Temporary Provision are exercised), the respondent has been prevented from meeting with his attorney. This combination leads to a situation where, as a practical matter, the respondent’s ability to present his case at the hearing is extremely limited. This is a material violation of the arrestee’s rights. His right to be present at his hearing is violated, as is his right to defend himself and to present his position, and in effect, his right to present his arguments to the court has been materially violated . . . The said violation becomes more serious, since within the framework of the proceeding that is being conducted, it is necessary to restrict the person’s freedom through the use of detention — and as is known, freedom from detention is a basic right which is contained in the Basic Law: Human Dignity and Liberty.’

In CrimApp 1144/06 Ziyad v. State of Israel [17], at para. H, my colleague Justice Rubinstein wrote as follows: “ . . . It is axiomatic, in any event, that the defense of a party who cannot consult with his attorney is likely to be impaired to a certain degree, and not only temporarily. The suspect is not always aware of his procedural and substantive rights, and an effective legal defense often depends on a combination of the suspect’s factual knowledge and of his lawyer’s legal knowledge.” The provisions of the Statute under discussion here further restrict the arrestee’s ability to conduct a defense in terms of reducing the ability to present to the court the arrestee’s factual knowledge — and this is a restriction that is in addition the violation that results from the prevention of a meeting with an attorney. Thus, both the legal and factual aspects of the defense are weakened.

29.  Indeed, the harm done to a person who cannot protest his detention either through his own presence or through an “intelligent representative presence” is a very severe human rights violation. It is likely to invalidate the legal proceeding and strip it of any content. This is, in effect, an ex parte proceeding. The European Court of Human Rights, in a decision dealing with art. 5(4) of the European Convention of Human Rights, held as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” In that case, an arrestee claimed that she had not been permitted to be present at the proceedings in which the court deliberated regarding objections to her detention — proceedings at which she wished to present arguments with respect to the conditions of her detention. The court ruled as follows:

‘The Court recalls that by virtue of Article 5(4), an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5(1), of his or her deprivation of liberty… The proceedings must be adversarial and must always ensure equality of arms between the parties… The possibility for an arrestee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty . . . ‘

The Court was aware that the arrestee had been represented by counsel at the proceeding, but that such representation was not a sufficient alternative for her own presence, because of the attorney’s ignorance of facts known only to the arrestee:

 ‘The Court notes at the outset the applicant sought leave to appear before the appeal court in order to plead her release on the grounds intimately linked to her personal situation. She planned, firstly, to describe the appalling conditions of her detention, of which her counsel did not have first-hand knowledge. Only the applicant herself could describe the conditions and answer the judges’ questions, if any. . . ‘

The court therefore held that the refusal to allow the arrestee to appear in court denied her effective control of the legality of her detention, as required pursuant to art. 5(4) of the Convention.

30.  All of the above leads to the conclusion that s. 5 of the Statute can only be examined upon consideration of the overall normative framework dealing with the interrogation and detention of security offense suspects. When the arrestee has not met with an attorney, and the court is unable to direct questions to the arrestee in order to clarify matters that require clarification, the court’s ability to conduct fair and effective review of the matter is substantially restrained. The court, in effect, relies on the position and statements of only one of the parties. This is a harsh result in light of what is necessary for legal proceedings to be proper and in light of the subject under discussion here — the curtailment of a person’s liberty.

Similarly, we cannot ignore the fact that according to the law in its current state, it is frequently the case that during detention hearings, courts will be presented with material on an ex parte basis. Needless to say, this fact alone causes some form of a violation of the arrestee’s ability to defend himself. By itself, this is a practice which, although necessary in certain cases, creates difficulty for the arrestee who seeks to conduct a defense and for the court that wishes to rule in accordance with the normal rules that guide us. The courts use various methods to minimize the violation of the arrestee’s rights — such as, inter alia, providing either the arrestee’s lawyer or his counsel with any information that has been presented to the court ex parte and which may be disclosed. It is clear that the ability to minimize the violation of the arrestee’s rights, in terms of allowing the arrestee the opportunity to respond to such information, is weakened when the arrestee is not present and his counsel — as is frequently the case — has not yet met with him.

As noted above, the respondent’s argument that in light of the various restrictions imposed by other laws on the suspect’s ability to defend himself — such as the restricted exposure to the main points of the evidence presented against him — the additional violation caused by his absence from the legal proceeding “is not great”. The reasoning seems to be that an already existing violation of a suspect’s rights and of the propriety of the legal proceeding weakens the argument against a further violation of the suspect’s ability to defend himself, and against a further limitation of the court’s ability to clarify the true facts and information. If the respondent did intend to make that argument, it must be utterly rejected. Even in a proceeding involving the detention of security offense suspects, substantive judicial supervision remains necessary. The arrestee’s presence is especially important in a proceeding such as this one — i.e., the detention hearing — which anyhow involves various restrictions. In any event, when a basic right is violated from a number of perspectives, or gradually, it is certainly possible that the cumulative effect will be that the various violations will cross the threshold of constitutionality, such that the last “marginal violation” will not be permissible.

31.  All of the above indicates that s. 5, especially in combination with other provisions contained in the law, can lead, de facto, to the arrestee being isolated from the legal proceeding being conducted in his case — a proceeding that revolves around a basic impairment of the right to be free of detention. The various provisions relating to the preliminary stages of the interrogation of security offense suspects is likely to mean the loss of any ability to maintain minimally effective control over the protection of an arrestee’s rights in the framework of the detention hearings and interrogation proceedings. In effect, these provisions leave the court, as a reviewing entity, with only a partial view of what it needs to see, and thus impairs an integral and essential aspect of the constitutionality of an investigative detention. As President Barak has stated in another context:

‘The degree of a society’s sensitivity to the need to protect the liberty of the individual is expressed in the scope recognized by the government authority of the judicial review that can be exercised over a decision by the said authority that violates one of a person’s freedoms. Indeed, the protection of the individual’s freedom is too precious to us for it to be left in the hands of the government authorities. I am aware that judicial supervision does not always ensure that human rights will be protected. However, I am persuaded that the absence of judicial supervision will end in the violation of human liberty. When there is no judge, there is no law’ (LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist [18].

The provision contained in s. 5 is therefore likely to cause severe damage to the legal proceeding itself, and to its effectiveness and its fairness. The provision violates the arrestee’s right to due process, which is derived from his right to freedom and dignity. I note that the violation is reduced somewhat by the provision in s. 5 of the Statute that allows the arrestee to be kept from attending his detention hearings only after the first detention hearing has been held in his presence — but the provision does no more than that. The ongoing supervision of the proceedings relating to an investigative detention is important for the protection of human rights — at least as important as the ongoing investigation is for the realization of the goals of the interrogation.

32.  The second element relates to the disruption of the interrogation that s. 5 is intended to prevent. There is no doubt that a continuous interrogation — conducted without any impedance, delay or interruption — is likely to be useful in terms of the realization of its objectives. The expansion of the interrogator’s powers is likely to make it easier to discover the truth. The fast and efficient discovery of the truth is especially important when the security of the state and its citizens is at stake. I note that the power to order the holding of a hearing without the arrestee being present is limited to those situations in which the court is “persuaded that the suspension of the arrestee’s interrogation is likely to prevent the thwarting of the commission of a security offense or hinder the ability to prevent harm to human life” (for the continuation of a detention) or when the court “is persuaded that the suspension of the arrestee’s interrogation is likely to cause material harm to the interrogation” (rehearing or appeal). The provision is therefore intended to be used in situations in which, from the perspective of the objectives of the interrogation, it is of great importance to allow the interrogation to be carried out without interruption.

Nevertheless, “a democratic society — one that supports freedom — does not allow interrogators to use any and all methods to disclose the truth . . . sometimes the price of the truth is so high that a democratic society cannot pay it” (HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel [20], per President Barak at para. 22). Thus, an effective interrogation, carried out while the person being questioned is being detained, must be combined with substantive judicial supervision. The conduct of a proper legal proceeding is essential, so as to ensure that the investigative detention is proportionate and constitutional. As a matter of principle, the suspect’s appearance before a judge should not be viewed as an obstacle, but rather as a basic element of an effective and constitutional investigative detention. “The accepted approach is that judicial review is an integral part of the detention process . . . at the basis of this approach lies a constitutional perspective which considers judicial review of detention proceedings essential for the protection of individual liberty” (HCJ 3239/02 Marab v. IDF Commander in Judea and Samaria [21]). The significance is that the interrogation methods must be adjusted so that they can be halted in order to allow an effective and fair judicial proceeding to be conducted. An interrogation that takes place over time, while the interrogated party is held in custody and prevented from being brought before a court and to state his case before that court, is likely to reach the level of constituting a violation of human dignity and liberty.

To the extent that the objective is to reduce the harm done to the interrogation due to its interruption for the purpose of holding a judicial proceeding, it is necessary to examine the possibility of minimizing that harm through means that cause a lesser violation of the arrestee’s rights. If it is difficult to interrupt the interrogation in order to bring the arrestee to court, it is also necessary to find ways to reduce this difficulty — ways that are more proportionate than preventing the arrestee’s presence at the hearing. Regarding the proportionality sub-test, we note that the respondent was unable to persuade us that no other methods are available that cause a lesser violation of the arrestee’s rights and which can, at the same time, achieve the objective that the legislation was enacted to achieve; such methods, which involve a lesser violation of a right, would be added to the special methods that are already established in the legislation — those measures that are already available to the authorities conducting the interrogation as well as to the enforcement authorities, pursuant to the existing Arrests Law, and pursuant to the other sections of the Temporary Provision (other than s. 5, which is the subject of discussion here).

33.  An examination of both the degree of the violation of the interrogated party’s fundamental rights — on the one hand — and of the interrogation advantage derived from the provision of s. 5 on the other, leads to the conclusion that this measure is not proportionate. An additional piece of information supports this conclusion — the  frequency with which the measure established in s. 5 is used. The respondents argued that s. 5 of the Temporary Provision is used relatively rarely, and presented data to support this claim. According to them, the data prove that the implementation of s. 5, as a practical matter, is limited to only a few cases each year. However, this argument, which points to the rarity of the need to hold hearings at which the arrestee is not present, only strengthens the constitutional difficulty resulting from the enactment of s. 5. The remarks made by Justice Zamir in the above-mentioned Tzemach v. Minister of Defense [1] are pertinent here as well:

‘Even if we had been shown data indicating that only a relatively few soldiers are held in custody until the end of the maximum time period, this is not a sufficient response to the argument that the maximum detention period is longer than necessary . . . The test of the detention period’s proportionality also relates to the maximum period of detention — the period established by law, and not only to the actual period during which a particular person has been detained. If the maximum period causes a violation of personal liberty which is greater than is required, the fact that it violates the liberty of only a few of them makes no difference. The liberty of a single person is as deserving of protection as is the liberty of the entire world’ (ibid, at para. 33).

The same is true in our case.

In light of this, we believe that the Temporary Provision does not satisfy the proportionality test — either from the perspective of the second sub-test (the minimum violation test) or from the perspective of the third test (the relativity test, or as it is also called, the narrow proportionality test).

Conclusion

34.  The Supreme Court has emphasized more than once the need to act with maximum restraint in exercising the power to invalidate laws on the ground that they violate the provisions of the Basic Laws dealing with human rights. “The declaration that a law or a part thereof is invalid is a serious matter. A judge may not do this lightly . . . when he invalidates a piece of primary legislation, the judge frustrates the will of the legislature. This is justified only by the fact that the legislature is subject to constitutional/supra-constitutional provisions that the legislature has itself established . . . At the same time, the courts must exercise significant judicial caution” (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [16], per President Barak at para. 19). This is how we have acted in this case as well.

We have also taken into consideration the special constitutional challenge faced by a democratic state which is fighting against terrorism. A situation involving hostilities in general, and of hostilities in a struggle against terrorism in particular, disturbs the balance between human rights and the security of the state and of the public. Human rights are intended to be basic principles that can withstand such disturbances, but the struggle against terrorism requires — in Israel as in other countries — an adjustment of the implementation of the constitutional criteria for the purpose of dealing with the threat of terrorism. The main principle of Israel’s legal system is to maintain the constitutional requirements even in the face of the terrorist threat. Indeed, “[t]his is the destiny of a democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back” (Public Committee Against Torture in Israel v. State of Israel [23], per Justice Barak at para. 39). This is the secret of the strength of a democratic regime, which maintains its unyielding support of its fundamental principles and values even when it is engaged in a conflict against a party lacking those same values (see also HCJ 769/02 Public Committee Against Torture in Israel et al. v. Government of Israel [22]).

35.  In conclusion, and in light of all this, we believe that the provision of s. 5 of the Temporary Provision on which the lower courts relied when deciding the appellant’s case cannot be allowed to stand, because it violates the fundamental constitutional principles established in the Basic Law: Human Dignity and Liberty. The significance therefore is that the appellant’s detention hearing should have been held in his presence. From a constitutional perspective, the significance of our holding is that the Arrests Law must from this point forward be interpreted in accordance with its formulation prior to the enactment of s. 5 of the Temporary Provision.

Justice E. E. Levy

I concur.

President D. Beinisch

I concur in the opinion of my colleague, Vice President Rivlin, and in his conclusion that s. 5 of the Temporary Provision Law violates, to a greater extent than is necessary, the constitutional right of an arrestee to be present at his detention hearings — which is a core component of the right to due process.

After concurring in this opinion, I received the opinions of my colleagues, Justices Naor and Grunis, who believe that legislation can be used to regulate the issue, which can be a proportionate measure in certain circumstances. Indeed, there may be some exceptional and rare situations in which it may be necessary, in order to prevent an immediate and concrete danger, to refrain from bringing an arrestee before a judge for a detention hearing— but this will be the case only rarely, when the very fact that an interrogation is halted for the purpose of bringing the arrestee to court is likely to lead to immediate harm to human life, and the risk is at the level of great certainty, as in the case of a “ticking bomb”. I myself believe that such rare cases can be resolved through what is at least a partial legal solution that can be found in other existing arrangements. Regarding this matter, I join in the position taken by my colleague Justice Rubenstein in para. 26 of his opinion, in which he expresses doubt that such legislation is worthwhile for the purpose of providing a solution for such rare cases. Indeed, I wonder whether there is any justification for providing a response to these rare cases through a unique piece of legislation such as the Temporary Provision which is the subject of the appeal before us, and whether such legislation will not present a “slippery slope” of constitutional difficulties. These questions are not before us here, and I see no reason to take any position regarding them.    

Justice E. Arbel

I agree with the opinion of my colleague, Vice President Rivlin.

Section 5 of the Temporary Provision, as well as the entire Temporary Provision, is the result of the complex security situation that prevails in our region — a situation in which, unfortunately, terrorism has become a permanent fixture. The security forces stand at the frontline of the struggle against terrorism; their task is to deal with the challenges and threats presented by terrorism on a daily basis, and the state provides them with appropriate tools for this purpose. The Temporary Provision is one of those tools, given to the security forces in order to allow them to carry out their function. The purpose of the Temporary Provision is to provide the security forces with the appropriate tools for carrying out their function, based on an understanding that the interrogation of those suspected of having committed security offenses differs from an ordinary police interrogation of a criminal suspect. Indeed, the interrogation of a security offense suspect is unique in that its main purpose is usually to prevent activity that is directed against the security of the state. These are offenses that are generally committed against an ideological background, and this frequently means that the suspects or other relevant individuals who are being interrogated refuse to cooperate with those conducting the interrogation. Furthermore, when the parties being interrogated are not residents of the State of Israel, there is in any event an added difficulty in obtaining additional evidence, questioning relevant witnesses, information-gathering, etc. Each one of these factors alone leads to a situation in which the interrogations of those suspected of committing security offenses are very complex, frequently requiring both time and continuity — and this is even more so when the various factors are combined. Such interrogations are also often carried out under time pressure (see also the Draft Law).

At the same time, as my colleague has explained, even in these circumstances, Israel is required to conduct the struggle for its security and for the security of its citizens in a manner that maintains its character as a democratic and Jewish state. In other words, the battle against terrorism and against all the security threats faced by Israel must be fought within the boundaries outlined in the law (HCJ 3451/02 Almandi v. Minister of Defense [23], at pp. 34-35; HCJ 7015/02 Ajuri v. IDF Commander [24]; HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [25]). The objective does not validate all possible means. Indeed, the explanatory material to the Draft Law, as well as the explanatory material to the Draft Criminal Procedure Law (Enforcement Powers — Arrests) (Security Offense Suspect) (Temporary Provision) (Amendment), 5768-2007) (Draft Laws 340), pursuant to which the Temporary Provision’s force was extended, indicate that the drafters sought to take into consideration the guiding principles of our system regarding the rights of criminal suspects, while regulating the powers given to the investigative authorities with regard to the investigation of security offenses. Thus, the legislature was also aware that because of Israel’s character as a state that upholds the law, the limitations on permissible government action remain in place — and that special care must be taken regarding the rights of a suspect who is held by the state and is in its custody, whenever a measure is considered which contains within it a violation of a suspect’s rights.

For these reasons, I find it difficult to accept the state’s argument that because a suspect whose liberty has already been restricted in order to serve the public interest of clarifying the truth will already have lost significant rights during the interrogation stage, the temporary loss of his right to be present at a detention hearing will not constitute a significant additional violation. The guideline in this matter should be the opposite: although there are indeed situations in which it is not possible to avoid certain violations of the rights of a security offense suspect — in that the main evidence against him is not disclosed to him and in that he is sometimes prevented from meeting with an attorney for a set period of time etc. — these violations should be viewed as exceptional, as measures that are to be used cautiously and with restraint. We therefore cannot argue that an additional violation of the suspect’s rights is permissible and justified, due to its mildness in light of the other violations that take place in any event.

In conclusion, I also believe that s. 5 of the Temporary Provision lacks proportionality, for the reasons that the Vice President noted. The legislature’s intent, which was to create a reasonable and appropriate balance between the need to create tools that would be suitable for the interrogation of a security offense suspect and our fundamental principles regarding the rights of a suspect and of an arrestee, has not been realized in practice.

Justice M. Naor

1.    I agree with my colleague, Vice President Rivlin, that s. 5 of the Criminal Procedure Law (Arrest of a Security Offense Suspect) (Temporary Provision), 5766-2006 (hereinafter: the Statute) impinges upon the right to a fair criminal proceeding — a right which is closely connected to the constitutional right to human dignity  established in the Basic Law: Human Dignity and Liberty. In order to pass the constitutionality test, this infringement  must satisfy the tests set out in the limitations clause. I agree that s. 5 of the Law, as currently formulated, does not satisfy the tests of the limitations clause. Nevertheless, my position is that the declaration that the statute is void should be postponed for six months. This will allow the legislature to determine, if it chooses to do so, narrower and more proportionate limits on the conduct of a detention extension hearing, an appeal or a review in the absence of the arrestee — all in the spirit of my remarks below. In my view, the possibilities for allowing a hearing to take place without the detainee being present must be limited to a narrow range of possibilities, which I will define below. In short, according to my view, in rare cases, the right to due process must retreat for a short time in the face of the need to prevent — at the level of near certainty — harm to human life. As my view is the minority view, I will state my position in brief.

2.    I will first clarify the demarcation of time during which it is permissible, pursuant to the Statute that we are examining here, to hold a hearing without the detainee being present. The first judicial determination regarding the detention of a security offense suspect takes place in the presence of that suspect, and the constitutionality of that first proceeding (hereinafter, “the first detention decision”) has not been challenged by any argument raised before us. The first detention decision may include an order that the suspect be held for up to twenty days (hereinafter: “the maximum period”). Where the court has ordered, in the framework of the first detention decision, a detention period of less than 20 days, section 5 “kicks in” ’and allows a judge to extend the detention up to the maximum period, in a proceeding conducted in the detainee’s absence (hereinafter, “the detention extension decision”). The infringement of the constitutional right therefore occurs within the period in which s. 5 of the Statute grants the court jurisdiction to decide the matter of the extension of the detention, under certain conditions, without the detainee being present; in other words,  the number of days that completes the maximum period of 20 days, and no more. As I have suggested, even this period might be too long, and I will discuss this below.

3.    The rule under the Statute is that a hearing must be held in the presence of the detainee, and the hearing in the absence of the detainee is the exception to that rule. As my colleague the Vice President noted, the purpose of the exception — improving the enforcement agencies’ ability to carry out effective investigations of security offenses — is an appropriate purpose (see paras. 23 and 25 of my colleague’s opinion). The key to its constitutionality is the requirement of proportionality. The state’s argument that the practical implementation of the Statute, is “limited and proportionate” (para. 41 of the written pleadings) is not sufficient. The statute that creates the power that infringes upon a constitutional right must itself be “limited and proportionate”. Sections 5(1) and 5(2) of the Statute define different “balancing formulas” for the application of the exception, and I will describe them, moving from the most stringent to the most lenient: the frustration of prevention of harm to human life (regarding an extension of detention); the thwarting of a security offense (regarding an extension of detention); or material harm to the interrogation (regarding a review or an appeal). The most stringent test is the frustration of the prevention of harm to human life. It is stringent in comparison with the test involving the prevention of a security offense, given that the definition of a “security offense” in s. 1 of the Statute does not necessarily require proof of a concern regarding harm to human life, and instead refers to a concern regarding harm to the security of the state (see s. 3 of the state’s written pleadings). It is also more stringent in comparison to the test regarding substantial harm to the investigation (see CrimApp 8473/07 State of Israel v. A [26], per Justice Vogelman at para. 5). Regarding the last two balancing formulas, the least stringent ones, I accept the conclusion reached by my colleague the Vice President — that they do not satisfy the proportionality requirement, because they allow for too broad a range of possible  infringements of a constitutional right. Section 5(2) of the Statute should therefore be declared invalid. The possibility of holding a hearing in the detainee’s absence in order to thwart a security offense, as described in  s. 5(1), must also, in my opinion and in the opinion of my colleague the Vice President, be eliminated.

4.    I take a different position, as a matter of principle, regarding the more stringent balancing formula appearing in s. 5(1), which requires that the court be persuaded that the interruption of the interrogation is likely to hinder the prevention of harm to human life. Such a requirement may indeed be proportionate if additional limitations are imposed. One limitation could be achieved by way of interpretation: the expression “likely to” could be interpreted as a test requiring near certainty that the presence of the detainee at the hearing in court will lead to the frustration of the prevention of harm to human life (regarding the near certainty test, see HCJ 73/53 Kol Ha’am v. Minister of the Interior [27]; A. Barak, A Judge in a Democratic Society, at pp. 273-274 (2004)). A “near certainty” requirement expresses a formula that “has been established on a broad conceptual basis” (HCJ 243/62 Israeli Film Studios v. Gary [28], per Justice Landau, at 2418G). The case law has accepted near certainty as a balancing formula regarding prior restraint on a right, as opposed to its restriction after the fact (see CrimA 6696/96 Kahane v. State of Israel [29], per President Barak at paras. 10 and 11). The near certainty requirement makes clear that the exception can only be used if there are critical, necessary and “decisive” reasons for its use, in order to prevent the frustration of the prevention of harm to human life (see and compare President Shamgar’s remarks in HCJ 253/88 Sejadia v. Minister of Defense [30], at p. 821, at the B-C margin marks). The typical case in which such reasons are present, but not necessarily the only one, is when there is a “ticking bomb”, when “there exists a concrete level of imminent danger of the explosion’s occurrence” (see and compare: Public Committee Against Torture in Israel v. Government of Israel [20], at p. 841).

5.    In general, a possible interpretation can be used to conform a statute to the constitutional requirements (see: HCJ 9098/01 Ganis v. Ministry of Building and Housing [31]; HCJ 4562/92 Zandberg v. Broadcasting Authority [32]; CrimA 6559/06 A. v. State of Israel [33], per President Beinisch at paras. 7-8). There is a connection between the interpretative balancing formulas, such as the near certainty test, that were formulated in the case law prior to the “constitutional era”, and the proportionality principle established in the constitutional limitations clause. In my view, the case law balancing formulas can be properly placed, mutatis mutandi, within the framework of the third sub-test of proportionality, which is based on a balancing of values (see HCJ 10203/03 “Hamifkad Haleumi” Ltd v. Attorney General [34], at par. 55 of my opinion). This is the position taken by Professor Barak, as he recently described it (A. Barak, “Principled Constitutional Balancing and Proportionality: the Doctrinal Perspective,” Barak Volume - Studies in the Judicial Work of Aaron Barak 39 (E. Zamir, B. Medina and C. Fassberg, eds., 2009), at pp. 94-96). If the only difficulty I found in s. 5(1) of the Statute regarding the more stringent test was that it does not expressly refer to the near certainty test, that test could be prescribed by way of  interpretation (while eliminating the test relating to the thwarting of  a security offense).

However, in our case, the said interpretation technique is not sufficient to allow the Statute to satisfy the constitutional requirement, even regarding the stringent test. Even if a stringent interpretative criterion were to be adopted regarding s. 5 of the Statute, requiring near certainty that the interruption of the interrogation would frustrate the prevention of harm to human life (while eliminating the other less stringent tests), the section would still be tainted by a constitutional defect that cannot be remedied other than through the legislature’s intervention, should the legislature decide to so intervene: the Statute still grants the power to establish, in the context of a detention extension decision, a duration for the detention which is liable to be disproportionate  — even one that is as long as the maximum period. An extension of detention until completion of the full continuous maximum period, in the absence of the detainee, is liable to infringe upon the constitutional right beyond the extent that is necessary — particularly if the initial detention period  was a short one. I have therefore concluded that there is no choice but to declare the invalidity of s. 5(1), as my colleague has proposed.

6.    The invalidation of a statute is a measure of last resort. The constitutional aspiration is to strike a balance between conflicting values, rather than to decide between them. “A balance must be struck between security needs and the rights of the individual. This balance imposes a heavy burden on those involved in the defense of the state. Not every effective measure is also a legal one. The end does not justify the means . . . This balance imposes a heavy burden on the judges, who must determine, on the basis of existing law, what is permitted and what is prohibited”  (Public Committee Against Torture in Israel v. Government of Israel [22], per President Barak, at para. 63).

Against this background, I considered the possibility of finding the Statute constitutional with respect to the more stringent balancing formula only, as per the interpretation requiring near certainty, in reliance on the assumption that in all cases, a judge deliberating a case in the absence of the arrestee will reach a proportionate result concerning the duration of the detention  (see and compare A. v. State of Israel [33], per President Beinisch at para. 46). However, I concluded, ultimately,  that such an attempt cannot succeed. If, as per my view, s. 5(2) needs to be invalidated in its entirety, there is no point, in any event, in allowing a detention hearing to be held without the detainee being present: an appeal will be submitted immediately, requiring the detainee’s presence by virtue of the general law regarding appeals as established in s. 53 of the Criminal Procedure Law (Enforcement Powers – Arrests), 5756-1996 — and the detainee’s interrogation will be halted for that purpose. Furthermore, the determination of the duration of the maximum period is primarily the job of the legislature, and it should be allowed a reasonable amount of time to establish an arrangement that will satisfy the constitutionality threshold (compare Tzemach v. Minister of Defense [1], at p. 284; Marab v. IDF Commander in  Judea and Samaria [18]; Y. Mersel, “Suspension of a Declaration of Invalidity,” 9 Mishpat U’Mimshal (Law and Government) 39 (2006).

7.    I therefore agree with the bottom line expressed in the decision of my colleague the Vice President. I nevertheless believe that we can leave for further discussion the Vice President’s view that in this case the “cumulative effect” of the provisions regarding the denial of attorney-client meetings, together with s. 5 of the Statute, crosses the constitutionality threshold (paras. 28 and 30 of his opinion). I emphasize that in this proceeding the appellant did not attack the constitutionality of s. 35 of the Arrests Law — the section dealing with the prevention of meetings with an attorney (and see also s. 35(g) of the Arrests Law which allows for  hearings to be held in the presence of the detainee and of his attorney, separately). I believe that the bottom line can be reached through a direct analysis of s. 5 of the Statute in and of itself.

In light of the novelty of my colleague’s approach, I wish to note regarding this matter that the argument concerning the “cumulative effect” of two legislative measures is a consequential argument (see, in the context of a discrimination claim, HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [35]). As a consequential argument it cannot be examined abstractly, and instead it is always applied in the context of a concrete case (see and compare HCJ 366/03 Society for Commitment to Peace and Social Justice v. Minister of Finance [36], per President Barak, at par. 19). The use of the “effect” argument in the context of this case means that a claim is being made that the manner in which the measures are employed, when combined together, amounts to an unnecessarily excessive infringement of a constitutional right. The argument is not made against the very existence of each of these powers, in and of itself and separately. The rule is that the burden of proof in the first stage of a constitutional review is imposed on the party arguing against constitutionality, and it is that party that must prove that a constitutional right has been infringed upon. The rationale at the basis of this requirement is the presumption of constitutionality (A. Barak, “The Burden of Proof and the Infringement of Constitutional Rights,” Trends in the Evidentiary Rules and in the Criminal Procedure Law — Collection of Articles in Honor of Professor Eliahu Harnon 53 (A. Horowitz and M. Kremnitzer, eds., 2009), at p. 71). This is also true with regard to the “effect” argument. Moreover, the acceptance of an “effect” argument” as a ground for invalidating the particular legislative measure that the party making the argument has chosen to attack, would involve, necessarily, a degree of arbitrariness. Such acceptance relies on the preliminary choice made by that party to attack a specific measure and reflects indifference regarding the other measure, even though it is the combination of the two both measures together that provides the basis for the “effect” argument. It is thus possible that the dominant cause of the “effect” — the cause that forms the source of the unconstitutionality — is not even brought before the court for review, and the court is presented with a deficient factual and legal picture. Therefore, in my opinion, the invalidation of a particular legislative measure which has been established through primary legislation, on the basis of an “effect” argument, requires an overall examination of all the legislative measures that give rise to the claimed “effect”. It is clarified that the party making the argument must do so in a reasoned and focused way, and not as a general claim. (The burden of proof requirement mentioned above necessitates this as well.) In my view, we have not been presented here with arguments that justify the acceptance of such an “effect” argument.

And note, even if the appellant had carried the burden of proof described above, I would still be of the opinion that there is no obvious answer to the question of whether the combination of two measures — which are each constitutional on their own — is likely to cause an unconstitutional “effect” on a cumulative basis. The answer to the question depends, inter alia, on the manner in which the measures are actually implemented in practice; on the purpose constituting the basis for each measure; and on the ability to identify the measure which is dominant in  causing the said effect. Thus, for example, when the purposes of the measures are connected, the invalidation of one of the measures is likely to eliminate the justification for the use of the other measure (see and compare HCJ 801/00 Bassam Natshe and The Public Committee Against Torture in Israel v. Erez Military Court [38]). Of course, this examination of the legislative measures will also impact upon the proper constitutional remedy. These issues are complex and require in-depth examination. I prefer to leave them for further review at the appropriate time, having reached the conclusion that the legislative measure prescribed in s. 5 of the Statute, in and of itself, is unconstitutional.

8.    To sum up, if my view is accepted, s. 5(1) and s. 5(2) will be found to be invalid. This leads to the invalidation of the entire s. 5 of the Statute, since s. 5(3) and s. 5(4) do not stand alone. My position is that the legislature should be given six months during which, if it wishes to do so, it may establish a different arrangement that restricts the ability to hold detention extension hearings, reviews and appeals in the absence of the detainee. In my view, such an arrangement may be based on the presence of a danger – at the level of near certainty – that the prevention of harm to human life will be frustrated; the arrangement will relate to a limited period which will meet the criteria for constitutionality. I therefore propose to my colleagues to delay the declaration of the Statute’s invalidation that is contained in our judgment, for a period of six months from the date on which the judgment is rendered.

Justice S. Joubran

I concur in the decision of my colleague, Vice President E. Rivlin. We cannot ignore the needs of the hour and the need to allow the security forces to use effective means for protecting public welfare and security. However, as my colleague the Vice President notes, the normative framework that we are discussing here is a criminal proceeding. Even in times of emergency, we must not forget the primary principle, that the purpose of a criminal proceeding — the purpose without which there may not be a proceeding — is the punishment of a person for offenses that he has committed and regarding which his guilt has been established. It is often necessary, in the context of such a proceeding, to use secondary measures, the primary example of which would be an arrest and an interrogation, but these are required only for the purpose of realizing the final purpose of the proceeding. The defendant who has been prosecuted is the center of the criminal proceeding, and the questions that are asked of him will all relate to his own acts and liability for that which is attributed to him. Alongside this is the state’s duty to make use of its powers for the purpose of punishing him. It is therefore not for nothing that one of the key requirements, one to be found at the core of the criminal proceeding, is the presence of the defendant in the court where he is being brought to trial. When a defendant is prevented from exercising this right — to be present at the place where he is being judged — his right to human dignity has been severely violated. It would seem that the best description of this situation would be that of Josef K’s experience, and of his extreme despair after having been tried in secret, until his bitter end:

Were there objections that had been forgotten? Of course there were. Logic is no doubt unshakable but it can’t withstand a person who wants to live. Where was the judge he’d never seen? Where was the high court he’d never reached? He raised his hands and spread out all his fingers. But the hands of one man were right at K’s throat while the other thrust the knife into his heart and turned it there twice. With failing sight K. saw how the men drew near his face, leaning cheek-to-cheek to observe the verdict. “Like a dog!” he said; it seemed as though the shame was to outlive him.

[Translator’s note — excerpt from “The Trial, published by Tribeca Books, April 2012, translation copyright by David Wyllie]

Unlike the Kafkaesque legal world, it is unimaginable in the modern liberal world of law that a person would be tried for his actions without being given the opportunity to be present at the time that his guilt is being determined, and this is not disputed in the case before us either.

The state’s position on this is incorrect: these matters are just as relevant at the stage of a pre-trial arrest. In contrast to the state’s position, it is when a person is in custody in anticipation of his trial, at a time when the presumption of his innocence remains in full force, that it is especially necessary that he himself be brought before the court in order to refute what has been attributed to him and to seek his freedom. Despite all the significance of an intensive and effective interrogation of security offense arrestees — arrestees whose interrogation can often prevent harm to the lives of innocent people — the purpose of an interrogation in the context of a criminal proceeding is the clarification of those acts that the person being interrogated committed in the past, in anticipation of the person being brought to trial for the commission of such acts. The limitations imposed on the person’s freedom are derived from this purpose — such limitations being a consequence of the acts the person is suspected of having committed. The denial of the rights of these arrestees to come before court and argue against their detention — at a time that the evidence against them is only at the prima facie level and has not yet been formed into the basis for an indictment — constitutes a direct contravention of the most basic principles of criminal law, and we cannot accept it.

I therefore agree with the view that the Temporary Provision must be invalidated, as it does not satisfy the requirements of the Basic Law: Human Dignity and Liberty.

Justice E. Rubinstein

Introduction

1.    I join in the comprehensive opinion of my colleague the Vice President, subject to my following comments. I first wish to express my surprise regarding the petitioners’ decision to withdraw their petition in HCJ 2028/08 because of the hearing held partially in camera (albeit by majority decision), at which the representatives of the defense establishment presented their positions. Section 15 of the Arrests Law does allow for the presentation of confidential information regarding particular individuals on an individual basis, as counsel for the petitioners argued, but I do not believe that this option is unavailable when the case is a “general” and constitutional case being deliberated by the High Court of Justice. Indeed, this is not a routine matter; it is instead a non-routine decision regarding the unconstitutionality of a statutory provision which relies on, inter alia, “the ? hindrance of the prevention of harm to human life” (s. 5(1) and s. 5(4) of the Temporary Provision, with which we are dealing), and requires precise and sophisticated consideration. The court must be presented with the complete picture, particularly when the argument being made involves the proportionality of the legislation. The Knesset sub-committees also view confidential information. As some of my colleagues have noted during the deliberations in this Court, this viewing of confidential information was necessary in order for our decision to be responsible and concrete, rather than abstract.

2.    My colleague the Vice President considered the question of whether the issue should be dealt with as a theoretical one, and I will add, as a further reason for dealing with this case (beyond his reasons, with which I agree) that given the Israeli reality, and especially the reality relating to Judea, Samaria and the Gaza Strip and the Palestinian population, it is frequently the case that an immediate decision is required. This immediacy does not allow for an organized and in-depth response to  a particular case, so that the discussion of the principles of the subject must be conducted after the operative matter has come to an end; see the matter of the release of the Palestinian prisoners in the context of negotiations, in HCJ 10578/08 Legal Institute of Terrorism Studies v. Government of Israel [37], decision dated 15 December 2009, and the unreported opinion of Justice Arbel, dated 3 November 2009).

Section 5 and interrogation methods

3.    Regarding the decision itself, it is not a simple one. The subject was discussed at length in the Knesset (as will be partially described below) and the legislature was persuaded by the needs of the security establishment. Our approach here is not based on self-righteousness; we are aware of the burdensome tasks faced by the security establishment in terms of the interrogations that are carried out for the purpose of thwarting acts of terrorism; we do not live in an ivory tower or in a bubble, as we are citizens, whose people and whose country are exposed to security dangers. We believe that the explanatory material accompanying the Draft Law (Draft Laws 206, supra, at p. 1) reflected, per the government, a necessity; we have learned from experience that even if some of the measures that the legislature has made available to the authorities who conduct the security interrogations – such as the prevention of meetings with attorneys (see s. 35 of the Arrests Law) – intrude on the array of rights of those who are subject to such measures, there are good reasons for these measures to be used, reflecting legitimate interrogation needs. As my colleague the Vice President noted, the purpose for the enactment of s. 5 is appropriate, on a prima facie basis. However — and I say this now and I will repeat it below — the measure which is prescribed in s. 5 (i.e., the holding of a hearing in the arrestee’s absence) is rarely used. Its rarity, which none dispute, indicates that the interrogation authorities — and this is a fact to be appreciated — generally do their work by relying on other measures that are available to them. The concern that a judicial decision will prevent the security forces from doing their job well also arose after the decision in Public Committee Against Torture in Israel v. Government of Israel [20] — that case being one which prohibited the use of a substantial portion of the measures that the parties conducting security investigations had used until that time. This concern eventually dissipated because of the professional wisdom that the authorities displayed following the issuance of that decision (a matter to which I will return). The need for a decision in our case arises from the fact that the State of Israel is a country in which human dignity is a constitutional value — and it is a value which contains within it the right to due process.

4.    I agree with the Vice President that we should not distinguish between the presence of the defendant at his trial and his presence at the detention hearings. As the sage Hillel said: “What is hateful to you, you must not do to your friend” (Babylonian Talmud, Shabbat 31a). It is true that those who are interrogated under the circumstances under discussion here are generally not our “friends” and they are often in fact our enemies; but we must recall the classic comments of the then Vice President Haim Cohen:

‘What is the difference between the way the state fights and the way its enemies fight — that the state fights while observing the law and the enemies fight while violating it. The moral strength and substantive justice of the fighting engaged in by the authorities is entirely dependent on the observance of the law of the land’ (HCJ 320/80 Kawasme v. Minister of Defense [38], at p. 132).

These remarks are true, a fortiori, with respect to hostilities that are conducted while complying with the Basic Laws and with the constitutional rights — meaning also the right to due process. When we speak of those being detained in connection with security offenses — who are subject, by law, to several unique restrictions (see, as stated, s. 35 and s. 36 of the Arrests Law) — any addition to the existing restrictions must be considered properly in terms of its proportionality, so that the result will not be like that of the mythological beast of burden who was given such a heavy load that any addition to it would cause the beast to collapse.

On security and rights

5.    The decision to be reached in this case is one part of this Court’s effort to deal with security matters, as set against various types of rights of Palestinians and Israelis. As President Barak wrote in Public Committee Against Torture in Israel v. Government of Israel [20] at p. 895, “[a] democracy must sometimes fight with one hand tied behind its back” (see also CrimA 6659/06 A v. State of Israel [33], at para. 30; HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of the Interior et al. [40]; HCJ 951/06 Stein v. Police Commissioner [41]; HCJ 7957/04 Mara’abe v. Prime Minister [42], at para. 29; HCJ 7862/04 Abu Daher v. IDF Commander in Judea and Samaria [43], at paras. 7-8).

6.    More than twelve years ago, I wrote the following:

‘The relationship between human rights issues and the security challenge and security needs will remain on the agenda of Israeli society and of the Israeli courts for many years. Israel is at the height of peace negotiations, but even the most optimistic do not expect that Israel will come to enjoy full peace and security during the foreseeable future. The tension between security and rights will remain, and its key legal expression will be the Basic Law: Human Dignity and Liberty; the discussion will continue regarding questions such as when do security concerns prevail over rights, and what is the proper balance between protecting existence and protecting the human essence — a formulation which reaches the core of the dilemma. We will continue to deliberate the question of what is the range between the commandment “take therefore good heed unto yourselves” (Deuteronomy 4, verse 15) in a group sense, and “man was created in the image of God” (Genesis 9, verse 6) and “the honor of human beings is great in that it annuls even a negative commandment of biblical origin” (Babylonian Talmud, Brachot 19b). The court seeks to find the balance between security and rights, such that the word security is not used in vain, but security is also not forgotten’ (E. Rubinstein, “The Basic Law: Human Dignity and Liberty and the Security Establishment,” 21 Tel Aviv Univ. L. Rev. (Iyyunei Mishpat) 21 (1998), at p. 22; E. Rubinstein, Paths of Government and Law (2003), at p. 226).

This matter is especially obvious when we speak of the General Security Service. (See my remarks in my above-mentioned book, at pp. 268, 270-271, originally published in E. Rubinstein, “Security and Law: Trends,” 44 Hapraklit 409 (October 1999); see also E. Rubinstein, “On Security and Human Rights During the Struggle Against Terrorism,” 16D Law and the Military 765 (2003). As N. Alterman wrote, as quoted in Paths of Government and Law, supra, at p. 271, in his poem “Security Needs, Following One of the Searches, 1950” (Seventh Column 1, at p. 3279): “A state is not built with white gloves and the work is not always clean and pure-hearted — this is true! It seems that to some degree, we allow ourselves a small luxury of dirt.” Long before the “age of human rights”, the poet warned us against sliding into the commission of improper acts. And I would bring a “general” parallel from another piece of his poetry, which refers to the concealment of information from the public regarding a security trial (see, as background, M. Finkelstein, “The ‘Seventh Column’ and ‘Purity of Arms’ — Nathan Alterman on Security, Morality and Law” ?20(a) Law and the Military 177 (2009)). The poet wrote the following words (Seventh Column 2, at p. 358):

‘Thus, it is not only that these matters should not be kept confidential, not only that the doors of the courtroom may not be locked . . . the deliberation must go beyond its framework, all must be dealt with under the light of day.’

And the words of the American Supreme Court Justice, Louis Brandeis, are often recalled and cited “sunlight is said to be the best of disinfectants . . .”.

7.    Indeed, the struggle to arrive at  a balance between security and rights, using a sensitive scale and fine-tuned tools, runs like a shining light through this Court’s case law. Because Israel is a Jewish and democratic state, its approach to the matter of the ethics of the struggle against terror must draw inspiration from Jewish law as well. In HCJ 9441/07 Igbar v. IDF Commander in Judea and Samaria [44], Rabbi Aaron Lichtenstein’s remarks (from “The Patriarch Abraham’s Ethics of War,” Parshat Lech Lecha, 5766, websitehanas of Yeshivat Har Etzion) are cited:

‘We must continue to walk in the path outlined for us by our father Abraham (regarding the way he conducted his war — E.R.) and be sensitive to morality and justice even in the middle of a just war and struggle, which are themselves correct.’

See also J. Ungar, “Fear Not Abraham — on Jewish Military Ethics,” Portion of the Week (A. Hacohen and M. Wigoda, eds.), at p. 30; A. HaCohen, “‘I am for Peace; But When I Speak, They Are For War’: Law and Morality at a Time of War,” Portion of the Week, at p. 260.

8.    In HCJ 1546/06, Gazawi v. Commander of IDF Forces in Judea and Samaria [45], the Court, referring to the need for a substantial interrogation of every detainee, held as follows:

‘Within the basic boundaries of human dignity — and the rules relating to this apply to all, even to those who are suspected of having committed the most serious and even despicable and depraved crimes, acts committed by those who are as far from human dignity as east is from west — there is an obligation to interrogate a person shortly after his arrest, while presenting to him the information that can be shown to him, the information which is not classified and which may therefore be disclosed. The purpose of allowing this, beyond the provision of the opportunity to raise arguments concerning mistaken identity, etc., is that a person may not be detained without having been given every opportunity, even if he does not make use of it, to present a version that refutes the justification for his arrest, and to attempt to persuade . . .’

As Professor A. Rosen-Tzvi wrote (Hapraklit, Jubilee Volume -1993, ed. in chief, A. Gabrieli, ed., M. Deutsch), 77, at p. 78:

‘ . . . The reality of security dangers does not negate the law, just as the enormity of crime does not cancel the need to grant basic rights to the person being interrogated, or to a defendant. The law is not silenced by security needs. Security must also adapt itself to law, but at the same time, a particular security situation requires the law to adjust itself within the framework of the proper balancing between law and life’.

See also CrimPet 10879/05 Al-Abid v. State of Israel [46]:

‘The security reality of the state involves real security needs, and the enemies of the state and those who help them or those involved in terrorism . . . often act in a sophisticated manner while presenting new challenges to the security and enforcement authorities . . . the security challenges weigh in on one side, and the need to guard the rights of the defendant, including his constitutional rights, weighs in on the other side; each case requires a careful balancing’.

We are faced, in examining the proportionality of the Temporary Provision in this proceeding, with the duty to act fairly, on the one hand, and the need to find a balance, on the other hand.

Legislative proceedings and parliamentary supervision

9.    It is now necessary to note, in brief, that the Knesset deliberations regarding the legislation that is the subject of this case — deliberations that were held in the plenum and in the Committee on the Constitution, Law and Justice — involved a great deal of discussion of s. 5 (s. 6 of the Draft Law). The Draft Law was submitted along with a great emphasis on the necessity of continuous interrogations (Protocol of the Committee on the Constitution, Law and Justice hearing, 16.3.2006, at p. 2) and the change that had taken place when the military administration of Gaza ended in the summer of 2005. During the Committee’s hearing on 16 March 2006, the Committee’s chairman, MK Michael Eitan, stressed the challenge presented by the need to strike a proper balance (ibid., at p. 3). At the same session Dr. Yuval Shani of the Hebrew University noted (ibid., at p. 14) the difficulty presented by the combination of a hearing held in the defendant’s absence — something which can, by itself, be justified by special security needs — and a situation in which the defendant has been prevented from meeting with an attorney. The representative of the Association for Civil Rights in Israel, Attorney Lila Margalit, asked whether it was legitimate for a democratic state not to allow a suspect to appear in court because of the need for a continuous interrogation since “judicial supervision has an additional function [beyond the extension of the detention — E.R.], which is the viewing of the suspect. The fact that the suspect is removed from the interrogation unit and physically reaches the court has great significance with respect to his ability to present complaints . . . ” (ibid., at p. 23). Chairman Michael Eitan responded (ibid., at p. 24) that the matter should be the subject of judicial discretion, since the court has the tools to determine when it needs to see the individual. The legal adviser to the General Security Service noted (ibid., at p. 32) that after the disengagement from the Gaza Strip, the physical disconnection had caused great difficulty with respect to interrogations. The Deputy State Prosecutor, Attorney Shai Nitzan, noted (ibid., at p. 44) that it would be necessary to attempt to persuade a judge, who wishes to be made aware of all, to allow the arrestee not to be present so as not to hamper the interrogation.

10.  The discussion of this subject was not concluded during the sixteenth Knesset’s term, and it was deliberated again by the seventeenth Knesset on 20 June 2006. The deputy legal adviser to the Knesset, Attorney Sigal Kogut, presented (Protocol of the Committee on the Constitution, Law and Justice hearing, 20.6.2006, at pp. 2-3) the Draft Law as it was at that time (the proposal had been changed in the meantime), including the framework for the exercise of judicial discretion through which the court would determine whether it was persuaded that the interruption of the interrogation would be likely to prevent the thwarting of the commission of a security offense, or the ability to prevent injury to human life (ibid., at p. 5). Several Knesset members discussed the question of the arrestee’s presence at a trial, as did Attorney A. Avram, from the Public Committee Against Torture (ibid., at p. 11-12) and the Deputy State Prosecutor, Attorney Nitzan (ibid., at pp. 27-28). Attorney Nitzan agreed (ibid., at p. 28) that s. 5 was problematic, but described the many difficulties involved in conducting a reasonable interrogation if the arrestee is required to be brought every day or two to court — “we therefore sought a solution for the matter . . . that it will be necessary to persuade the court to allow the hearing to be held in the arrestee’s absence. If we wish to enable the conduct of reasonable interrogations, we must provide a tool . . . I ask that you rely on Israel’s judges that if they are being sold a story . . . they will know not to buy it”. At the Committee vote on the section (on 20 June 2006), the Meretz, Chadash and Ra’am-Ta’al factions expressed reservations, seeking to delete s. 5, but these were not accepted. Reservations regarding this subject were expressed in the Knesset plenum (on 27 June 2006), when the Temporary Provision was approved.

11.  During the deliberation preceding the first reading of the matter of the extension of the Temporary Provision (on 12 November 2007), Justice Minister Daniel Friedman stated as follows: “It has become clear that the provisions prescribed in the Temporary Provision have been most essential for the enforcement authorities who are engaged in the investigation of terrorism crimes and in thwarting them.” At the discussion held by the Committee on the Constitution, Law and Justice (on 3 December 2007), the head of the interrogations department of the General Security Services stated, regarding s. 5, that it had been used on seven occasions through that time. Attorney Avram of the Public Committee Against Torture again noted (Protocol of the Committee on the Constitution, Law and Justice hearing, 3.12.2007, at pp. 8-9) that “the hearing of the two sides is the moral basis for an adjudication . . . we are tying the judge’s hands. The arrestee finds himself in a position of inferiority and remains in a truly inhumane situation. He cannot go to court and state his position, and he cannot tell anyone of the manner in which he is being interrogated, he cannot tell anyone of any mistake that he has found . . . nor can he speak of any other matter . . .” On the other hand, the head of the interrogations department of the General Security Service stated that “without this, it is impossible” (ibid., at p. 123). At a different Committee hearing (on 12 December 2007) the issue of s. 5 arose again (in particular, s. 5(4), dealing with the possibility of concealing from the arrestee the decision in his case if the court is persuaded that “disclosure to the arrestee is likely to prevent the thwarting of the commission of a security offense or hinder an ability to prevent harm to human life”). It was again proposed that s. 5 should be omitted, but the reservation was not accepted. When the extension of the Temporary Provision came up for second and third readings (on 18 December 2007), MK Y. Levy stated, in the name of the Committee on the Constitution, Law and Justice, that “the Committee  . . . had received a detailed report from the Ministry of Justice and from security forces involved in the matter, and we had the impression that the security forces were using this law in a proportionate manner. The security forces had used these sections only in what appeared to be exceptional cases, which were few in number.”

12.  To complete the picture, it is noted that the semi-annual report to the Committee on the Constitution, Law and Justice regarding the exercise of the powers that had been granted, dated 9 September 2008, stated that s. 5 had been used twice (including the use of more than one sub-section). The Committee’s legal adviser noted that there has been “a substantial decline, primarily in the use of s. 5, which is at the center of the petition.”

13.  We see that the legislative branch considered the issue of s. 5 at length. However, I suspect that the transcripts of the Knesset proceedings indicate that the state’s representatives did not provide any information regarding the way in which the interest in saving human lives that are at risk is truly weakened if the security establishment does not have available to it the ability (even if it is dependent on the court’s approval) to conduct a legal proceeding in the absence of the arrestee, as described in s. 5. The Temporary Provision designed by the legislature is not limited to cases of “ticking bombs” and the protected value which is under discussion here is not limited to human life. The issue thus does not reach the level of near certainty and substantial and immediate concern for human life, and I do not consider here the question of whether, in certain circumstances, the necessity defense established in s. 34K of the Penal Code, 5737-1977 would be available. Thus, when considering the section in terms of the constitutional balancing, it would seem that the scales have tipped, disproportionately, in favour of one side — with harm being done, from the suspect’s perspective, to the significant value which is his right to due process — and this does not, heaven forbid, reflect on the court’s decency or that of the authorities conducting the interrogation and the prosecution. Instead, it relates to the condition of the suspect. We understand the difficulties noted by the security establishment in connection with the need to conduct continuous interrogations, and we cannot say that these are not significant in certain cases, but there are not many such cases, and in any event the duration of the first detention will have been determined by a judge who has examined the interrogation needs in the specific case, in view of the specifics of the party being interrogated. I would emphasize the following: the need to bring the arrestee before a judge is a fundamental principle in any proper legal system and is a part of the judicial genetic code without which there is no due process. Thus, this legislation lacks proportionality, as my colleague the Vice President described. Moreover, we note, simply, the principle of human dignity has shown us that an issue which can be resolved through other measures does not comply with the limitations clause, even if the particular matter has been enacted through legislation, even in only a Temporary Provision — when the constitutional right to due process has been violated.

Dealing with terror and legal limitations

14.  Here I wish to placate the respondents, to a certain degree, by adding that after the decision in Committee Against Torture in Israel v. Government of Israel [20] in 1999 — only a little more than ten years ago — the security establishment was very concerned (to put it mildly). I served, at the time, as the Attorney General, and many discussions were held in various forums regarding the implementation of the decision and the new situation that had been created, and various legislative initiatives were considered that were intended to make it possible “to survive the harsh decree”. And fortunately, the establishment has, over time, found solutions to the difficulties, through various forms of creativity. One year after the decision was issued, the difficult period entitled the “second intifada” began, and the tasks with which the security establishment was charged were very difficult; but it dealt with them, within the limitations established in that decision, with considerable success. The immediate aftermath of the decision in Committee Against Torture in Israel v. Government of Israel [20] was described as follows (Rubinstein, Paths of Government and Law, supra, at pp. 273-274):

‘After the decision, the establishment faced a dilemma; on the one hand, the General Security Service believed that the decision had dealt a harsh blow to the effectiveness of its interrogations during a period in which, in any event, in light of the agreements with the Palestinians and the withdrawals that were taking place, its ability to interrogate had become limited; it therefore believed that regulatory legislation was necessary. This position is worthy of examination. Many believed otherwise, and that there was no chance that any effective legislation would comply with the limitations clause. One of the dilemmas that we also face is the matter of the protection of the interrogator who carries out his job honestly, as the decision prohibits the use of the necessity defense as a sword, and allows it to be applied only as an “after the fact” shield. I myself believe that it will be of the utmost importance that there be as broad a consensus as possible for any solution that is found, since I believe that in terms of values, there are none who are more concerned about security than are others, and none who are more concerned with rights than are others.

After the decision was rendered, a committee headed by the Deputy State Prosecutor, Rachel Sucar, and the Deputy Attorney General, Meni Mazuz, discussed the question of whether there was a need for legislation, and if there was, what kind of legislation was needed. The questions are difficult to ask, and they are questions of the “squaring the circle” type . . . . In the end, after all this, the events of Tishrei 5761 (October 2000) occurred, with the ensuing eruption of violence, which significantly sharpened all these questions concerning the relationship between security and rights, as well as other questions.’

In the end, the decision was made not to pursue legislation, and the security establishment found methods and channels of interrogation that fell within the boundaries of the existing law.

15.  We are aware that some of the interrogation methods that are currently used were developed as a consequence of the decision in Committee Against Torture in Israel v. Government of Israel [20] and that our current decision will necessitate another round of creative thinking. It can be presumed that the security establishment will buckle down following the issuance of this judgment, and will find ways that comply with the law’s requirements to improve the interrogations and to achieve its objectives. We note, nevertheless, that the situation here, and that which followed the 1999 decision, are not at all the same. In Committee Against Torture in Israel v. Government of Israel [20], this Court disallowed various interrogation methods that had been used for years — but in this case we are dealing with interrogations that had been conducted for years without the additional tools provided in the Temporary Provision. It is true that after the disengagement from the Gaza Strip, there were more individuals whose interrogations were subject to Israeli law (and not to the region’s [military administration] law, which had applied in the past), but there is no reason not to apply to them the rules that applied prior to the Temporary Provision.

16.  In this context, I would add, that if the text of s. 5(1) had been such that its application was limited to cases involving the hindrance of the prevention of nearly certain injury to human life in the soon or near future, (which is not the case given the actual text of the section) — meaning that it would cover a “ticking bomb” situation (see also Committee Against Torture in Israel v. Government of Israel [20], at p. 845; Rubinstein, Paths of Government and Law, supra, at pp. 275-277) — it may very well have been able to pass muster from a constitutional perspective. This would be so even if in situations like this, the processes are generally urgent and rushed, with tight schedules that are likely to create problems of a different kind (see also paragraphs 22 through 27 below). However, constitutional judicial review can deal with a specific legislative arrangement, by approving or disapproving it, but such review cannot — either legally or practically — propose a more proportionate arrangement.

17.  We must take the bull by the horns. On a prima facie level, the authority granted in s. 5 is given to the court dealing with the detention, and the court can exercise discretion; the court, carrying out its function as a filter, will consider the circumstances and will ask the right questions before making a decision about whether to be satisfied with a proceeding at which the suspect is represented, but not present. And we must not forget that representation has its own value, and is also a basic right of a constitutional nature. Judicial intervention in such a case is not a simple matter (see, as a comparative parallel situation, HCJ 7932/08 Al-Harub v. Commander of the Military Forces in Judea and Samaria [47]). Nevertheless, I believe that the value of due process for one who is likely to be a serious offender, but who still enjoys a presumption of innocence and against whom no indictment has yet been issued, should tip the scales in the framework of proportionality. This section allows for detention to be extended without the suspect being present even when the interrogation involves a security offense that does not include a near certainty of danger to human life. Furthermore, the judge who determines the length of the first detention period will not necessarily be the one who will waive the need for the presence of the suspect later on, for the maximum of 21 days (which is a long period) — and this is a built-in difficulty. A situation can arise in which a second judge, sitting in the same court, can change the decision reached by his predecessor who had ruled that the court must see the suspect. In substance  — and this is the heart of the matter — it may be that the first judge, at the time that he determines the length of the initial detention, will receive a particular impression regarding the suspect’s situation, but the second judge will not receive this impression when the suspect is absent. I am also aware that this is a Temporary Provision, and that the level of the violation is therefore likely to be less. However, since this a constitutional right, the measure still impairs the concept of proportionality; the degree of harm to a right here is greater than is necessary.

The position of Jewish law regarding the presence of a litigant at his trial

18.  My colleague the Vice President has examined, from the perspectives of Israeli law and of comparative law, the issue of an arrestee’s presence at detention proceedings — both in terms of legislation and case law. I wish to look at the living sources of Jewish law regarding the matter. Although Jewish law does not deal directly with detention hearings, its clear position regarding the presence of a litigant at his trial, either civil or criminal, can be a source of inspiration in our case.

19.  Generally, this is an issue involving equality and fairness, and together with these two values — of justice. Its basis is biblical, coming from the language in Deuteronomy 1, verses 16-17:

‘I further charged your magistrates as follows, “Hear out your fellow man, and decide justly between any man and his fellow or a stranger [‘ger’].” You shall not be partial in judgment, hear out low and high alike. Fear no man, for judgment is God’s’ (emphasis added).

Note that the verse recalls not only the man and his fellow, but also the stranger; and although Rashi [an eleventh century major Biblical and Talmudic commentator – E.R.] explained the term “the ger”, according to the Babylonian Talmud (Sanhedrin 7b) as meaning a litigant who “collects much material against him”, the term “stranger” was translated by Onkelos [the Aramaic translator – E.R.] according to its plain meaning [namely, a convert – E.R.], and Rabbi Saadiah Gaon [a tenth century scholar] interpreted the term as meaning a “resident stranger”. And this is relevant to our matter, in which most of the arrestees involved — if not all of them — are Palestinians. Maimonides (the important twelfth century codifier and philosopher) ruled similarly (Laws of the Sanhedrin, 21, 7): “A judge may not hear the words of one of the litigants before his co-litigant arrives, or before the co-litigant was told ‘hear out your fellow man’.” In the same spirit, the Shulkhan Aruch (Hoshen Mishpat 16, 5) provides that “a judge may not hear the remarks of one litigant other than in the presence of the other litigant, and that litigant too has been cautioned regarding this.”

20.  It should be noted here that in Jewish criminal law, with respect to capital cases (dinei nefashot) (in which the punishment is capital punishment ordered by a court, and I stress this, because the phrase dinei nefashot is currently normally used to refer to criminal law in general) — it is required that the defendant be present. (See Babylonian Talmud, Sanhedrin 79B: “a person’s judgment may not be concluded other than in his presence” — and this applies as well to an animal who is, under certain circumstances, brought to trial — “the animal’s execution is [treated] like its owners”; see also, Babylonian Talmud, Baba Metzia 45A). Maimonides (in Laws of Murder and the Preservation of Life, 4, 7) ruled — for example — as follows: “If a murderer who was sentenced to execution becomes intermingled with other people, they are all absolved. Similarly, when a murderer who was not convicted becomes intermingled with other murderers who were sentenced to execution, none should be executed. The rationale is that judgment can be passed on a person only in his presence. All the killers should, however, be imprisoned” (emphasis added — E.R.); see also Maimonides, Laws of the Sanhedrin, 14, 7 “. . . we complete the judgment of a person only when he is present.” Note that, according to Jewish law, a trial in capital cases is ended on the day of the judgment in the event of an acquittal, and on the day afterwards if there is a conviction (Mishnah, Sanhedrin 4, 1; Maimonides, Laws of the Sanhedrin, 11, 1). This indicates that even a murderer will actually be exempt from execution if the judge was not able to see him at the time judgment was completed. The Bible states as follows (Numbers 35, 12) “the manslayer may not die unless he has stood trial before the assembly”; and the law is as Maimonides wrote: “How are cases involving capital punishment judged? When the witnesses come to the court and say: ‘We saw this person commit such-and-such a transgression’, the judges ask them: ‘Do you recognize him? Did you give him a warning?’ (Laws of the Sanhedrin, 12, 1), which is based on the language of the Mishnah, Sanhedrin 5, 1, which includes (per Rabbi Yossi) the following language among the questions that are asked of witnesses: “Do you know him? Did you warn him?” It is clear that this involves the presence of the defendant. See also Maimonides, Laws of Murder and the Preservation of Life, 1, 5; Sefer Hachinuch, 409. Indeed, it is not for nothing that in the context of the “capital laws” of our time, s. 126 of the Criminal Procedure Law (Integrated Version), 5742-1982, provides that “[i]n the absence of another provision in this Law, a person may not be judged in a criminal proceeding other than in his presence.”

21.  As Professor E. Shochetman wrote (“‘Hear Out Your Fellow Man’ — Rules of Natural Justice and the Principle of Equality in Arguments Brought by Litigants,” Portion of the Week 36), we are dealing with the principle of equality before the court. As he stated, “the reason for this rule is that in the absence of the opposing party, the litigant who is making his arguments can formulate lies as if they were the truth . . . after the judge has heard the words of this litigant, and has already leaned towards ruling in his favor, it will be difficult for the judge to change so as to rule in favor of the opposing party after he hears the arguments put forth by that party”. I do not say that the government authorities would not tell the court the truth, but I do wish to note the dilemmas involved when only one side is heard. Regulation 57 of the Rabbinical Tribunals Regulations, 5733, provides that “the litigants are to be present throughout the entire trial, even if they have representatives, unless the tribunal decides that their presence is not necessary . . .” Professor Shochetman also noted that the “denial of a litigant’s right to be present at the time that the claims and evidence of the other side are presented is a violation of the right to a fair hearing . . . this is one of the principles of natural justice”. And he concludes by stating that “the commandment of ‘hear out your fellow man’ involves many rules, and the purpose of all of them is ‘and you shall judge with justice’”. He cites Maimonides, as follows (from Laws of the Sanhedrin, 21, 1): 

‘It is a positive commandment for a judge to adjudicate righteously, as it is written: “Judge your fellow people with righteousness.” What is meant by a righteous judgment? It is when the two litigants are made equal with regard to all matters.’

See also Shochetman, Litigation Procedure (1988), at p. 220, citing the responsum of Rabbi Moshe Isserles (the Rama), who lived in Poland during the sixteenth century:

‘Obviously, a matter may not be judged without the defendant’s claims being heard, because the Torah commands “hear out your fellow man”, and although the matter is simple, we can learn it from God’s behavior, because all He does is justice and His ways are pleasant and His directions are of peace; He began with Adam (the first man) by asking him “Who told you that you are naked” and He asked Cain “where is your brother Abel,” so that He could hear his arguments. A fortiori, [the rule applies] to a regular person. And our rabbis learned from the verse “I will go down and see” — that He taught the judges that they should not judge until they hear and understand, and it is learned [from here]. And even if it is clear to the judge that the defendant is guilty, he must in any event hear his claims first.’

This is natural justice in its essence — see also LCrimA 7284/09 Rosenstein v. State of Israel [48], at para. 9; H. Shain, Justice in Jewish Law (2004), at pp. 98-99.

22.  The matter is summed up in Vol. 4 of the Talmudic Encyclopedia, “Litigant” (Column 105): “A litigant may not present his arguments to the judge until the other litigant has arrived, as it is said ‘keep away from lies’ (Exodus 22, verse 7). When a litigant argues in the absence of the other litigant, he is not ashamed of telling a lie. Rabbi Hanina said this, based on the verse ‘hear out your fellow man’ (Deuteronomy 1, verse 16), and this includes the following as well: the word hear means to make it be heard, between the parties, when both are present together” (in accordance with the Babylonian Talmud, Sanhedrin 7b, and Rashi’s commentary there).

23.  We see that Jewish law is very concerned with the rules of natural justice; it is true that the rabbinical judges had not been dealing, over the years, with the struggle against terrorism; but the litigation framework is clear and covers all. This Court cannot support a disproportionate weakening of the rules of natural justice.

Further comments on proportionality

24.  I also note that Professor Aaron Barak has examined the third sub-test as being among those suitable to be used in testing for constitutionality; he termed this test — following Vice President Cheshin  (in Adalah Legal Center for Arab Minority Rights in Israel v. Minister of the Interior et al. [40], at para. 109)  — “the test of proportionality in the value sense”  (see A. Barak, “The Test of Proportionality in the Value Sense,” Mishael Cheshin Volume, (2009) A. Barak, Y. Zamir, Y. Marzel (eds.), at pp. 201, 206). He terms this test “the absolute core of proportionality” (ibid., at p. 209), which, according to his view, “brings an aspect of reasonableness into the concept of proportionality” (ibid., at p. 211). Furthermore, in his article “A Principled and Proportionate Constitutional Balancing: A Doctrinal Perspective,” Barak Volume - Studies in the Judicial Work of Aaron Barak, supra, Professor Barak examines balancing — the metaphorical rule which is at the basis of the normative approach (see ibid., at pp. 53, 55), which is the “balancing between the importance that the single principle is given (beyond the proportionate alternative) and the importance of the prevention of harm to a constitutional right resulting from it” (ibid., at p. 63). The concept of the function of the balancing act, in his view, “is not to establish the scope of the right, but rather the justification for its protection or for its violation” (ibid., at p. 98). These comments are particularly apt in our case, and there is no need to expand.

25.  Jewish law also requires that a balancing be carried out. The basic rule, established by Rabbi Judah Hanasi [the President - E.R.] in Ethics of the Fathers 2, 1, provides as follows: “What is the straight path that a person should choose . . . calculate the loss generated by a commandment against its reward and the reward generated by a sin against its loss”. We can see this as being, in brief, a balancing, since here as well we are dealing with a matter that is given over to discretion, where there are more than a few unknown factors; see also Rashi’s commentary to the verse in Proverbs 4, verse 1, which reads as follows:  “Survey the course you take, and all your ways will prosper”; see also Rashi’s commentary to Babylonian Talmud, Moed Katan 8A, to the phrase beginning “and he who chooses the way. . .”. See also Dr. A. Hacohen, “The Principle of Proportionality in Jewish Law,” Portion of the Week 342, and the examples brought there regarding the need to minimize the harm done to human dignity; Rabbi S. Dichovsky “Proportionality and Coercion Regarding the Granting of a Divorce,” 27 T’humin 300.

Justice Naor’s position

26.  Before concluding, I will address the thorough opinion written by my colleague Justice Naor, which arrived after I had written my remarks. As noted, I also wrote (in paragraph 16 above) that it is very likely that a narrower version of s. 5(a) — dealing only with “ticking bomb” situations — could be found to be constitutional. My colleague also stresses that this type of restriction would involve a situation of a near certainty of harm. Even if such a legislative process is possible, I doubt whether, on a practical level, it would serve much purpose except in rare cases, and the question is whether it would be worthwhile to enact such legislation specifically for those cases.

27.  In any event, even if legislation regarding this matter is considered, it is doubtful whether the factual information that we have been shown here, with respect to the degree to which s. 5 is used as described above, necessitates the delay proposed by my colleague Justice Naor. Furthermore, my colleague discussed, persuasively, the matter of the “cumulative effect”, i.e., the question of why we are invalidating specifically this measure — the absence of the arrestee in court — and not, for example, the process for not allowing a suspect to meet with his attorney. She also discussed the question of whether  the “combination of two measures — which are each constitutional on their own — is likely to cause an unconstitutional ‘effect’ on a cumulative basis” (emphasis in the original); this question is indeed a valid one, although the accumulation of several factors often determine the balancing result in administrative law; but it is possible that the matter can be left as requiring further discussion, in light of the specific constitutional flaw we identified with regard to s. 5.

Conclusion

28.  Based on all of the above, I agree with the opinion of my colleague the Vice President, and I repeat my hope and belief that the security establishment can find appropriate solutions for the difficulty that it has noted, even though it appears that the practical scope of this difficulty is limited.

Justice E. Procaccia

I have given much consideration to the question of whether the constitutional difficulty regarding s. 5 of the Temporary Provision should bring about the complete invalidation of its provisions, or whether, in the spirit of the comments of my colleague, Justice Naor, the proper balance between the conflicting values justifies a decision to leave open a narrow possibility of permitting a deliberation in a criminal proceeding in the arrestee’s absence, under circumstances in which the needs of the interrogation involve the prevention of a danger of harm to human life, at the level of near certainty.

The ethical balancing required under the circumstances in this case is difficult and complex. It sets against each other the values of due process in criminal proceedings — which involves, at its core, the presence and involvement of the arrestee — and the needs of a criminal investigation, and in particular the he security aspects involved in the protection of human life which can often present substantial difficulties in terms of bringing the arrestee to the hearing of his case.

The decision to be made regarding these balancing questions is one of the most difficult of the decision-making processes. Nevertheless, it is unavoidable in a country in which there is a constant clash between the struggle for existence on the one hand, and a continuous striving to preserve human rights, on the other — and in which, each day, this conflict sharpens the proportions that must be maintained between protecting life and protecting life values.

The conduct of a fair trial for every person is part of the foundation of a constitutional regime. This is especially the case when the legal proceeding can lead to the restriction of a person’s liberty. The violation of this value of a fair trial touches on the deepest core of the human right to liberty — a right which is ranked highest among all human rights.

A fair trial requires due process. The value of due process in a criminal proceeding is a complex concept, comprised of more than one element. It contains many layers of procedural and substantive rights that are given to a person who is subject of the proceeding, and not all of these are of identical weight and status. Within the rich texture of the procedural rights and super-rights that are involved in a criminal proceeding, which together guarantee at a basic level that the proceeding will be based on due process, the presence and involvement of the arrestee or the defendant at the hearing of his case is one of the most important — if not the most important. The ability to realize these rights stands at the heart of due process. Without these rights, the person being judged is not involved in the determination of his fate; he is unable to make arguments in his defense; and the court is denied the opportunity to receive an impression regarding the conditions under which the person is being held, and of his physical and mental condition. Without these rights, there is a violation of a basic human right, which involves the possibility of a person’s liberty being denied. Without these rights, the judicial process loses an essential tool on its road to discovering the truth, and it loses all ability to examine and to supervise, as it moves towards a correct decision of the matter. The conduct of a criminal proceeding in the absence of the arrestee or of the defendant speaks of judicial proceedings held in the shadows; the horrors of such a phenomenon are an aspect of those dark regimes in which nothing is known of human rights or of judicial due process. The presence of a person at a hearing in his own criminal case is, indeed, one of the main aspects of due process, and without it, an important guarantee of the conduct of a fair trial is removed.

It is undisputed that an improvement of the means given to law enforcement authorities for the purpose of increasing the effectiveness of the interrogations they carry out in the area of security offenses is a most important goal — especially when those authorities are dealing with matters involved in the thwarting of possible dangers to human life. Under certain circumstances, the interrogation can become substantially difficult if it must be interrupted in order to bring the interrogated person to court for a hearing. The difficulty is material when the interrogation involves the thwarting of the commission of security offenses, and the prevention of danger to human lives.

The balancing of the right of the arrestee to be present at a hearing in his criminal case, as part of his basic right to criminal due process, on the one hand, and the needs of a security interrogation, given its objectives and its importance — on the other hand — is complex and difficult.

Despite the special complexity involved in the balancing of values that is required in this matter, the violation of the arrestee’s right to due process caused by his absence from the judicial hearing being conducted in his case is so deep and so basic that it cannot be left to stand, even if it creates substantial difficulty for the security forces in conducting their law enforcement activities and their activity involving the security of the state. Justice for the individual — which is dependent on, inter alia, the individual’s presence at his hearing, and on his ability to exercise his right to defend himself properly against the suspicions and accusations brought against him — is one of the signs that identifies a constitutional system of law, and without it the value of due process is dealt a mortal blow. The value of needing to do justice, which cannot be realized in full due to the arrestee’s absence at his hearing, will have, in this context, greater importance than even enforcement and general security considerations — no matter how important and substantive they are. The weight of the value of doing justice and of maintaining criminal due process is so great that it outweighs even the public interest involved in a criminal-security interrogation. Israeli law has expressed this value preference — for protecting the rights of an individual within law enforcement proceedings, as being above considerations related to the public-general security interest — in other contexts as well. Among other matters, the use of harmful interrogation methods even in security cases has been restricted, with the courts giving clear preference to the protection of the rights of the interrogated individual over the security considerations (Public Committee Against Torture in Israel et al. v. Government of Israel [20]); the legislature also determined that evidence which is confidential because of security reasons must be disclosed if it is material to the defendant’s defense, even if its disclosure can do harm to a general public interest, including a security interest (ss. 44 and 45 of the Evidence Ordinance [New Version], 5731-1971; CrimApp. 4857/05 Fahima v. State of Israel [49]; MApp 838/84 Livni v. State of Israel [50], at pp. 737-738; CrimApp 9086/01, Raviv v. State of Israel [51]; CrimApp 7200/08 Sa’id v. State of Israel [52]; CrimApp 5114/97 Salimani v. State of Israel [53], at p. 725.

In the context of the dilemma that arises concerning this issue, the value of doing justice and of maintaining due process in an individual’s case will outweigh even the public interest considerations involved in the use of the most efficient interrogation and enforcement methods, even in extreme situations involving danger to life, when the appearance of the arrestee in court can cause significant difficulty for the activity of the authority carrying out the interrogation. We can hope that these authorities will be able to adjust their operation system intelligently to the framework of rules that are intended to protect the arrestee’s rights in criminal proceedings, in a manner that will best coordinate between the needed protection of human rights in the context of a judicial proceeding and the need to deal with criminal-security interrogation needs, and to maintain the level and efficiency of such interrogations.

I therefore concur in the opinion of my colleague Vice President Rivlin, according to which s. 5 of the Temporary Provision must be completely invalidated, without leaving any margin that would allow for the conduct of a judicial hearing in a criminal proceeding in the arrestee’s absence, subject to the general provisions of the Arrests Law.

Justice A. Grunis

This document is a draft, and is subject to further revision.

Comments, questions and suggestions are all welcomed, and may be directed towards metargem@supreme.court.gov.il

HCJ 5100/94

HCJ 4054/95

HCJ 6536/95

HCJ 5188/96

HCJ 7563/97

HCJ 7628/97

HCJ 1043/99

HCJ 5100/94

Public Committee Against Torture in Israel

v.

1. The State of Israel

2. The General Security Service

HCJ 4054/95

The Association for Civil Rights in Israel

v.

1. The Prime Minister of Israel

2. The Minister of Justice

3. The Minister of Police

4. The Minister of the Environment

5. The Head of the General Security Service

HCJ 6536/95

Hat’m Abu Zayda

v.

The General Security Service

HCJ 5188/96

1. Wa’al Al Kaaqua

2. Ibrahim Abd’allah Ganimat

3. Center for the Defense of the Individual

v.

1. The General Security Service

2. The Prison Commander—Jerusalem

HCJ 7563/97

1. Abd Al Rahman Ismail Ganimat

2. Public Committee Against Torture in Israel

v.

1. The Minister of Defense

2. The General Security Service

HCJ 7628/97

1. Fouad Awad Quran

2. Public Committee against Torture in Israel

v.

1. The Minister of Defense

2. The General Security Service

HCJ 1043/99

Issa Ali Batat

v.

The General Security Service

The Supreme Court Sitting as the High Court of Justice

[May 5, 1998, January 13 1999, May 26, 1999]

Before President A. Barak, Deputy President S. Levin, Justices T. Or,  E. Mazza,  M. Cheshin, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner

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

Facts: In its investigations, the General Security Service makes use of methods that include subjecting suspects to moderate physical pressure. The means are employed under the authority of directives. These directives allow for the use of moderate physical pressure if such pressure is immediately necessary to save human life. Petitioners challenge the legality of these methods.

Held: The Court held that the GSS did not have the authority employ certain methods challenged by the petitioners. The Court also held that the “necessity defense,” found in the Israeli Penal Law, could serve to ex ante allow GSS investigators to employ such interrogation practices. The Court's decision did not negate the possibility that the “necessity defense” would be available post factum to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought were brought against them.

Petition denied.

Counsel for the petitioner in HCJ 5100/94—Avigdor Feldman; Ronit Robinson

Counsel for the petitioner in HCJ 4054/95—Dan Yakir

Counsel for the petitioners in HCJ 6536/95 HCJ 5188/96 and HCJ 1043/99—Andre Rosenthal

Counsel for petitioner Number Three in HCJ 5188/96—Eliyahu Abram

Counsel for petitioners in HCJ 7563/97 and HCJ 7628/97—Leah Tzemel; Allegra Pachko

Counsel for respondents—Shai Nitzan; Yehuda Scheffer

JUDGMENT

President A. Barak

The General Security Service [hereinafter the “GSS”] investigates individuals suspected of committing crimes against Israel’s security. Authorization for these interrogations is granted by directives that regulate interrogation methods. These directives authorize investigators to apply physical means against those undergoing interrogation, including shaking the suspect and placing him in the “Shabach” position. These methods are permitted since they are seen as immediately necessary to save human lives. Are these interrogation practices legal? These are the issues before us.

Background

1. Ever since it was established, the State of Israel has been engaged in an unceasing struggle for its security—indeed, its very existence. Terrorist organizations have set Israel’s annihilation as their goal. Terrorist acts and the general disruption of order are their means of choice.  In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas—in areas of public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy. (For an in depth description of this phenomenon see the Report of the Commission of Inquiry Regarding the Interrogation Practices of the GSS with Respect to Hostile Terrorist Activities headed by Justice (ret.) M. Landau, 1987 [hereinafter the Report of the Commission of Inquiry]. See 1 The Landau Book 269, 276 (1995).

The facts before this Court reveal that 121 people died in terrorist attacks between January 1, 1996 and May 14, 1998. Seven hundred and seven people were injured. A large number of those killed and injured were victims of harrowing suicide bombings in the heart of Israel’s cities. Many attacks—including suicide bombings, attempts to detonate car bombs, kidnappings of citizens and soldiers, attempts to highjack buses, murders, and the placing of explosives—were prevented due to daily measures taken by authorities responsible for fighting terrorist activities. The GSS is the main body responsible for fighting terrorism.

In order to fulfill this function, the GSS also investigates those suspected of hostile terrorist activities. The purpose of these interrogations includes the gathering of information regarding terrorists in order to prevent them from carrying out terrorist attacks. In the context of these interrogations, GSS investigators also make use of physical means.

The Petitions

2. These petitions are concerned with the interrogation methods of the GSS. They outline several of these methods in detail. Two of the petitions are of a public nature. One of these (HCJ 5100/94) is brought by the Public Committee against Torture in Israel. It submits that GSS investigators are not authorized to investigate those suspected of hostile terrorist activities. Moreover, they claim that the GSS is not entitled to employ those methods approved by the Report of the Commission of Inquiry, such as “the application of non-violent psychological pressure” and of “a moderate degree of physical pressure.” The second petition (4054/95) is brought by the Association for Civil Rights in Israel. It argues that the GSS should be ordered to cease shaking suspects during interrogations.

The five remaining petitions involve individual petitioners. They each petitioned the Court to hold that the methods used against them by the GSS are illegal.

3. Petitioners in HCJ 5188/96 (Wa’al Al Kaaqua and Ibrahim Abd’alla Ganimat) were arrested at the beginning of June 1996. They were interrogated by GSS investigators. They appealed to this Court on July 21, 1996 through the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. They petitioned the Court for an order nisi prohibiting the use of physical force against them during their interrogation. The Court granted the order. The two petitioners were released from custody prior to the hearing. As per their request, we have elected to continue hearing their case, in light of the importance of the issues they raise.

4. Petitioner in HCJ 6536/96 (Hat’m Abu Zayda), was arrested  on September 21, 1995 and  interrogated by GSS investigators. He turned to this Court on October 22, 1995 via the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. He complained of the interrogation methods allegedly used against him, including sleep deprivation, shaking, beatings, and use of the “Shabach” position. We immediately ordered the petition be heard. The Court was then informed that petitioner’s interrogation had ended. Petitioner was subsequently convicted of activities in the military branch of the Hamas terrorist organization. He was sentenced to 74 months in prison. The court held that petitioner both recruited for Hamas and also helped construct its terrorist infrastructure. The purpose of this infrastructure was to carry out the kidnapping of Israeli soldiers as well as execute other terrorist attacks against Israeli security forces. During oral arguments, it was asserted that the information provided by petitioner during his interrogation led to the thwarting of a plan to carry out serious terrorist attacks, including the kidnapping of soldiers.

5. The petitioner in HCJ 7563/97 (Abd al Rahman Ismail Ganimat) was arrested on November 13, 1997 and interrogated by the GSS. He appealed to this Court on December 24, 1997 via the Public Committee against Torture in Israel. He claimed to have been tortured by his investigators, through use of the “Shabach” position,” excessively tight handcuffs, and sleep deprivation. His interrogation revealed that he was involved in numerous terrorist activities, which resulted in the deaths of many Israeli citizens. He was instrumental in the kidnapping and murder of Sharon Edry, an IDF soldier. Additionally, he was involved in the bombing of Cafe “Appropo” in Tel Aviv, in which three women were murdered and thirty people were injured. He was charged with all these crimes and convicted at trial. He was sentenced to five consecutive life sentences plus an additional twenty years in prison.

Subsequent to the dismantling and interrogation of the terrorist cell to which petitioner belonged, a powerful explosive device, identical to the one detonated at Cafe “Appropo” in Tel Aviv, was found in Tzurif, petitioner’s village. Uncovering this explosive device thwarted an attack like the one at Cafe “Appropo.” According to GSS investigators, the petitioner possessed additional crucial information which he revealed only as a result of the interrogation. Revealing this information immediately was essential to safeguarding national and regional security and preventing danger to human life.

6. The petitioner in HCJ 7628/97 (Fouad Awad Quran) was arrested on December 10, 1997 and interrogated. He turned to this Court on December 25, 1997 via the Public Committee against Torture in Israel. Petitioners claimed that he was being deprived of sleep and was being seated in the “Shabach” position. The Court issued an order nisi and held oral arguments immediately. During the hearing, the state informed the Court that “at this stage of the interrogation, the GSS is not employing the alleged methods.” For this reason, no interim order was granted.

7. The petitioner in HCJ1043/99 (Issa Ali Batat) was arrested February 2, 1999, and interrogated by GSS investigators. The petition, brought via the Public Committee against Torture in Israel, argues that physical force was used against petitioner during the course of the interrogation. The Court issued an order nisi. During oral arguments, it came to the Court’s attention that the petitioner’s interrogation had ended and that he was being detained pending trial. The indictment alleges his involvement in hostile activities, the purpose of which was to harm the security and public safety of the “area” (Judea, Samaria and the Gaza Strip).

Physical Means

8. The GSS did not describe the physical means employed by GSS investigators. The State Attorney was prepared to present this information in camera. Petitioners opposed this proposal. As such, the information before the Court was provided by the petitioners and was not examined in each individual petition. This having been said, the state did not deny the use of these interrogation methods, and even offered justifications for these methods. This provided the Court with a picture of the interrogation practices of the GSS.

The decision to utilize physical means in a particular instance is based on internal regulations, which requires obtaining permission from the higher ranks of the GSS. The regulations themselves were approved by a special Ministerial Committee on GSS interrogations. Among other guidelines, the committee set forth directives regarding the rank required of an officer who was to authorize such interrogation practices.  These directives were not examined by this Court. Different interrogation methods are employed in each situation, depending what is necessary in that situation and the likelihood of obtaining authorization. The GSS does not resort to every interrogation method at its disposal in each case.

Shaking

9. A number of petitioners (HCJ 5100/94; HCJ 4054/95; HCJ 6536/95) claimed that they were subject to shaking. Among the investigation methods outlined in the GSS interrogation regulations, shaking is considered the harshest. The method is defined as the forceful and repeated shaking of the suspect’s upper torso, in a manner which causes the neck and head to swing rapidly.  According to an expert opinion submitted in HCJ 5584/95 and HCJ 5100/95, the shaking method is likely to cause serious brain damage, harm the spinal cord, cause the suspect to lose consciousness, vomit and urinate uncontrollably and suffer serious headaches.

The state entered several opposing expert opinions into evidence. It admits the use of this method by the GSS. It contends, however, that shaking does not present an inherent danger to the life of the suspect, that the risk to life as a result of shaking is rare, that there is no evidence that shaking causes fatal damage, and that medical literature has not, to date, reported a case in which a person died as a direct result of having been shaken. In any event, they argue, doctors are present at all interrogation areas, and the possibility of medical injury is always investigated.

All agree that, in one particular case, (HCJ 4054/95) the suspect expired after being shaken. According to the state, that case was a rare exception.  Death was caused by an extremely rare complication which resulted in pulmonary edema. In addition, the state argues that the shaking method is only resorted to in very specific cases, and only as a last resort. The directives define the appropriate circumstances for its use, and the rank responsible for authorizing its use. The investigators were instructed that, in every case where they consider the use of shaking, they must examine the severity of the danger that the interrogation is intending to prevent, consider the urgency of uncovering the information presumably possessed by the suspect in question, and seek an alternative means of preventing the danger. Finally, the directives state that, in cases where this method is to be used, the investigator must first provide an evaluation of the suspect’s health and ensure that no harm comes to him. According to the respondent, shaking is indispensable to fighting and winning the war on terrorism. It is not possible to prohibit its use without seriously harming the ability of the GSS to effectively thwart deadly terrorist attacks. Its use in the past has lead to the prevention of murderous attacks.

Waiting in the “Shabach” Position

10. This interrogation method arose in several petitions (HCJ 6536/95, HCJ 5188/96, HCJ 7628/97). As per petitioners’ submission, a suspect investigated under the “Shabach” position has his hands tied behind his back. He is seated on a small and low chair, whose seat is tilted forward, towards the ground. One hand is tied behind the suspect, and placed inside the gap between the chair’s seat and back support. His second hand is tied behind the chair, against its back support. The suspect’s head is covered by a sack that falls down to his shoulders. Loud music is played in the room. According to the briefs submitted, suspects are detained in this position for a long period of time, awaiting interrogation.

Petitioners claim that prolonged sitting in this position causes serious muscle pain in the arms, the neck and headaches. The state did not deny the use of this method. It submits that both crucial security considerations and the safety of the investigators require the tying of the suspect’s hands as he is being interrogated. The head covering is intended to prevent contact with other suspects. Loud music is played for the same reason.

The "Frog Crouch"

11. This interrogation method appeared in one of the petitions (HCJ 5188/96). According to the petition, the suspect was interrogated in a “frog crouch” position. This refers to consecutive, periodical crouches on the tips of one’s toes, each lasting for five minute intervals. The state did not deny the use of this method, and the Court issued an order nisi in the petition. Prior to hearing the petition, however, this interrogation practice ceased.

Excessively Tight Handcuffs 

12. In a number of petitions (HCJ 5188/96; HCJ 7563/97), several petitioners complained of excessively tight hand or leg cuffs. They contended that this practice results in serious injuries to the suspect’s hands, arms and feet, due to the length of the interrogations. The petitioners contend that particularly small cuffs were used. The state, for its part, denies the use of unusually small cuffs, arguing that those used were of standard issue and were properly applied. Even so, the state is prepared to admit that prolonged hand or foot cuffing is likely to cause injuries to the suspect’s hands and feet. The state contends, however, that injuries of this nature are inherent to any lengthy interrogation.      

Sleep Deprivation

13. In a number of petitions (HCJ 6536/96; HCJ 7563/97; HCJ 7628/97) petitioners complained of being deprived of sleep as a result of being tied in the “Shabach” position, while subject to the playing of loud music, or of being subjected to intense non-stop interrogations without sufficient rest breaks. They claim that the purpose of depriving them of sleep is to cause them to break from exhaustion.  While the state agrees that suspects are at times deprived of regular sleep hours, it argues that this does not constitute an interrogation method aimed at causing exhaustion, but rather results from the long amount of time necessary for conducting the interrogation.

Petitioners’ Arguments

14. Before us are a number of petitions. Different petitioners raise different arguments. All the petitions raise two essential arguments. First, they submit that the GSS is never authorized to conduct interrogations. Second, they argue that the physical means employed by GSS investigators not only infringe the human dignity of the suspect undergoing interrogation, but also constitute criminal offences. These methods, argue the petitioners, are in violation of international law as they constitute “torture.” As such, GSS investigators are not authorized to conduct these interrogations. Furthermore, the “necessity defense” is not relevant to the circumstances in question. In any event, the doctrine of "necessity" at most constitutes an exceptional post factum defense, exclusively confined to criminal proceedings against investigators. It cannot, however, provide GSS investigators with the authorization to conduct interrogations. GSS investigators are not authorized to employ any physical means, absent unequivocal authorization from the legislature which conforms to the constitutional requirements of the Basic Law: Human Dignity and Liberty. There is no purpose in engaging in a bureaucratic set up of the regulations and authority, as suggested by the Report of the Commission of Inquiry, since doing so would merely regulate the torture of human beings.

We asked petitioners whether the “ticking bomb” rationale was sufficiently persuasive to justify the use of physical means. This rationale would apply in a situation where a bomb is known to have been placed in a public area and will cause human tragedy if its location is not revealed. This question elicited different responses from the petitioners. There are those convinced that physical means are not to be used under any circumstances; the prohibition on such methods, to their mind, is absolute, whatever the consequences may be. On the other hand, there are others who argue that, even if it is acceptable to employ physical means in the exceptional circumstances of the “ticking bomb,” these methods are used even in absence of “ticking bomb” conditions. The very fact that the use of such means is illegal in most cases warrants banning their use altogether, even if doing so would include those rare cases in which physical coercion may have been justified. Whatever their individual views, all petitioners unanimously highlight the distinction between the post factum possibility of escaping criminal liability and the advance granting of permission to use physical means for interrogation purposes.

The State’s Arguments

15. According to the state, GSS investigators are authorized to interrogate those suspected of committing crimes against the security of Israel. This authority comes from the government’s general and residual powers, as per article 40 of the Basic Law: the Government. Similarly, the authority to investigate is bestowed upon every individual investigator under article 2(1) of the Criminal Procedure Statute [Testimony]. With respect to the physical means employed by the GSS, the state argues that these methods do not violate international law. Indeed, it is submitted that these methods cannot be described as “torture,” as “cruel and inhuman treatment,” or as “degrading treatment,” which are all strictly prohibited under international law.  The state further contends that the practices of the GSS do not cause pain and suffering.

Moreover, the state argues that these means are legal under domestic Israeli law. This is due to the “necessity defense” of article 34(11) of the Penal Law-1977. In the specific cases where the “necessity defense” would apply, GSS investigators are entitled to use “moderate physical pressure” as a last resort in order to prevent real injury to human life and well-being.  Such “moderate physical pressure” may include shaking. Resort to such means is legal, and does not constitute a criminal offence. In any case, if a specific method is not deemed to be a criminal offence, there is no reason not to employ it, even for interrogation purposes. According to the state, there is no reason to prohibit a particular act if, in specific circumstances, it does not constitute a crime. This is particularly true with respect to GSS investigators who, according to the state, are responsible for the protection of lives and public safety.  In support of their position, the state notes that the use of physical means by GSS investigators is most unusual and is only employed as a last resort in very extreme cases. Moreover, even in such cases, these methods are subject to strict scrutiny and supervision, as per the conditions and restrictions in the Report of the Commission of Inquiry. This having been said, when such exceptional conditions are present, these interrogation methods are fundamental to saving human lives and safeguarding Israel’s security.

The Report of the Commission of Inquiry

16. The authority of the GSS to employ particular interrogation methods was examined by the Commission of Inquiry. The Commission, appointed by the government under the Commission of Inquiry Statute-1968, considered the legal status of the GSS. Following a prolonged deliberation, the Commission concluded that the GSS is authorized to investigate those suspected of hostile terrorist acts, even in absence of an express statute, in light of the powers granted to it by other legislation as well as by the government’s residual powers, outlined in the Basic Law: the Government. See The Basic Law: The Government, § 40.  In addition, the power to investigate suspects, granted to investigators by the Minister of Justice, as per article 2(1) of the Statute of Criminal Procedure [Testimony], also endows the GSS with the authority to investigate.  Another part of the Report of the Commission of Inquiry deals with “defenses available to the investigator.” With regard to this matter, the Commission concluded that, in cases where the saving of human lives requires obtaining certain information, the investigator is entitled to apply both psychological pressure and “a moderate degree of physical pressure.” As such, an investigator who, in the face of such danger, applies a degree of physical pressure, which does not constitute abuse or torture of the suspect, but is proportionate to the danger to human life can, in the face of criminal liability, avail himself of the “necessity defense.” The Commission was convinced that its conclusions were not in conflict with international law, but were rather consistent with both the rule of law and the need to effectively protect the security of Israel and its citizens.

The commission approved the use of “moderate degree of physical pressure.” Such "moderate physical pressure" could be applied under stringent conditions. Directives to this effect were set out in the second, secret part of the report, and subject to the supervision of bodies both internal and external to the GSS. The commission’s recommendations were approved by the government.

The Petitions

17. A number of petitions dealing with the application of physical force by the GSS for interrogation purposes have made their way to this Court over the years. See, e.g., HCJ 7964/95 Billbissi v. The GSS (unreported decision); HCJ 8049/96 Hamdan v. The GSS (unreported decision); HCJ 3123/94 Atun v. The Head of the GSS (unreported decision); HCJ 3029/95 Arquan v. The GSS (unreported decision); HCJ 5578/95 Hajazi v. The GSS (unreported decision). Immediate oral arguments were ordered in each of these cases.  In most of the cases, the state declared that the GSS did not employ physical means. As a result, petitioners requested to withdraw their petitions. The Court accepted these motions and informed petitioners of their right to set forth a complaint if physical means were used against them See HCJ 3029/95. In only a minority of complaints did the state did not issue such a notice. In other instances, an interim order was issued. At times, we noted that we "did not receive any information regarding the interrogation methods which the respondent [generally the GSS] seeks to employ and we did not take any position with respect to these methods." See HCJ 8049/96 Hamdan v. The GSS (unreported decision). In HCJ 336/96; HCJ 7954/95 Billbissi v. The GSS (unreported decision), the Court noted that, “[T]he annulment of the interim order does not in any way constitute permission to employ methods that do not conform to the law and binding directives.”

As such, the Court has not decided whether the GSS is permitted to employ physical means for interrogation under the defense of “necessity.” Until now, it was not possible for the Court to hear the sort of arguments that would provide a complete normative picture, in all its complexity. At this time, in contrast, a number of petitions have properly laid out complete arguments. For this we thank them.

Some of the petitions are rather general or theoretical while others are quite specific. Even so, we have decided to deal with all of them, since we seek to clarify the state of the law in this most complicated question. To this end, we shall begin by addressing the first issue—are GSS investigators authorized to conduct interrogations? We shall then proceed to examine whether a general power to investigate could potentially sanction the use of physical means—including mental suffering—the likes of which the GSS employs. Finally, we shall examine circumstances where such methods are immediately necessary to rescue human lives and shall decide whether such circumstances justify granting GSS investigators the authority to employ physical interrogation methods. 

The Authority to Interrogate

18. The term “interrogation” takes on various meanings in different contexts. For the purposes of these petitions, we refer to the asking of questions which seek to elicit a truthful answer, subject to the privilege against self-incrimination. See the Criminal Procedure Statute (Testimony), § 2. Generally, the investigation of a suspect is conducted at the suspect’s place of detention.  Any interrogation inevitably infringes the suspect’s freedom—including his human dignity and privacy—even if physical means are not used. In a country adhering to the rule of law, therefore, interrogations are not permitted in absence of clear statutory authorization, whether such authorization is through primary or secondary legislation. This essential principle is expressed in the Criminal Procedure Statute (Powers of Enforcement, Detention)-1996, §1(a):

Detentions and arrests shall be conducted only by law or by virtue of express statutory authorization.

Hence, the statute and regulations must adhere to the requirements of the Basic Law: Human Dignity and Liberty. The same principle applies to interrogations. Thus, an administrative body, seeking to interrogate an individual—an interrogation being defined as an exercise seeking to elicit truthful answers, as opposed to the mere asking of questions as in the context of an ordinary conversation—must point to an explicit statutory provision. This is required by the rule of law, both formally and substantively. Moreover, this is required by the principle of administrative legality. “If an authority cannot point to a statute from which it derives its authority to engage in certain acts, that act is ultra vires and illegal.” See I. Zamir, The Administrative Authority (1996) at 50. See also 1 B. Bracha, Administrative Law 25 (1987).

19. Is there a statute that authorizes GSS investigators to carry out interrogations?  There is no specific provision that deals with the investigatory authority of GSS agents. “The status of the Service, its function and powers, are not outlined in any statute addressing this matter.” See the Report of the Commission of Inquiry, at 302. This having been said, the GSS constitutes an integral part of the executive branch. The fact that the GSS forms part of the executive branch is not, in itself, sufficient to invest it with the authority to interrogate. It is true that, under the Basic Law: The Government, § 40, the government does possess residual or prerogative powers:

The Government is authorized to perform, in the name of the state, all actions which are not in the jurisdiction of another authority. In performing such actions, the Government is subject to all applicable laws.

We cannot, however, interpret this provision as granting the authority to investigate. As noted, the power to investigate infringes a person’s individual liberty. The residual powers of the government authorize it to act whenever there is an “administrative vacuum.” See HCJ 2918/93 The City of Kiryat Gatt v. The State of Israel. There is no so-called “administrative vacuum” this case, as the field is entirely occupied by the principle of individual freedom. Infringing this principle requires specific directives, as President Shamgar insisted in HCJ 5128/94 Federman v. The Minister of Police:

There are means which do not fall within the scope of government powers.  Employing them, absent statutory authorization, runs contrary to our most basic normative understanding.  Thus, basic rights forms part of our positive law, whether they have been spelled out in a Basic Law or whether this has yet to be done. Thus, for example, the government is not endowed with the capacity to shut down a newspaper on the basis of an administrative decision, absent explicit statutory authorization, irrespective of whether a Basic Law expressly protects freedom of expression. An act of this sort would undoubtedly run contrary to our basic understanding regarding human liberty and the democratic nature of our regime, which provides that liberty may only be infringed upon by virtue of explicit statutory authorization.... Freedom of expression, a basic right, forms an integral part of our positive law. It binds the executive and does not allow it to stray from the prohibition respecting guaranteed human liberty, absent statutory authorization.

In a similar vein, Professor Zamir has noted:

In areas where the government may act under section 40 of the Basic Law: The Government, its actions must conform to the law. Clearly, this precludes the government from acting contrary to statutes. Moreover, it prevents the government from infringing basic rights.  This, of course, is true regarding the rights explicitly protected by the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. This is also the case for human rights not specifically enumerated in those Basic Laws. For instance, section 40 cannot authorize the government to limit the freedom of expression…. Section 40 only grants general executive powers that cannot serve to directly infringe human rights, unless there is explicit or implicit statutory authorization for doing so. This same conclusion can also be drawn from the fact that a grant of administrative authority cannot be interpreted as granting the power to infringe human rights, unless such powers are explicitly granted by statute.

 See 1. I. Zamir, The Administrative Authority 337 (1996).

The same is true in this case. There are to be no infringements on an individual's liberty against interrogation absent statutory provisions which successfully pass constitutional muster. The government’s general administrative powers do not fulfill these requirements. Indeed, when the legislature sought to endow the GSS with the power to infringe individual liberties, it anchored these powers in specific legislation. Thus, for instance, statutes provide that the head of a security service, under special circumstances, is authorized to allow the secret monitoring of telephone conversations. See the Secret Interception of Communication Statute-1979, § 5; Compare the Protection of Privacy Statute-1981, § 19(3)(4). Is there a special statutory instruction endowing GSS investigators with interrogating powers?              

20. A specific statutory provision authorizing GSS investigators to conduct interrogations does not exist. While it is true that directives, some with ministerial approval, were promulgated in the wake of the Report of the Commission of Inquiry, these do not satisfy the requirement that a grant of authority flow directly from statute or from explicit statutory authorization. These directives merely constitute internal regulations. Addressing such directives, in HCJ 2581/91 Salhat v. The State of Israel , Justice Levin opined:

Clearly, these directives are not to be understood as being tantamount to a “statute,” as defined in article 8 of the Basic Law: Human Dignity. They are to be struck down if they are found not to conform to it

From where, then, do the GSS investigators derive their interrogation powers? The answer is found in article 2(1) of the Criminal Procedure Statute [Testimony] which provides:

A police officer, of or above the rank of inspector, or any other officer or class of officers generally or specially authorized in writing by the Chief Secretary to the Government, to hold enquiries into the commission of offences, may examine orally any person supposed to be acquainted with the facts and circumstances of any offence in respect whereof such officer or police or other authorized officer as aforesaid is enquiring, and may reduce into writing any statement by a person so examined.

It is by virtue of the above provision that the Minister of Justice authorized GSS investigators to conduct interrogations regarding the commission of hostile terrorist activities. It has been brought to the Court’s attention that, in the authorizing decree, the Minister of Justice took care to list the names of those GSS investigators who were authorized to conduct secret interrogations with respect to crimes committed under the Penal Law-1977, the Prevention of Terrorism Statute-1948, the (Emergency) Defense Regulations-1945, the Prevention of  Infiltration Statute (Crimes and Judging)-1954, and crimes which are to be investigated as per the Emergency Defense Regulations (Judea, Samaria and the Gaza Strip-Judging in Crimes and Judicial Assistance-1967). It appears to us—and we have heard no arguments to the contrary—that the question of the authority of the GSS to conduct interrogations can be resolved. By virtue of this authorization, GSS investigators are, in the eyes of the law, like police officers. We shall not now, however, express our opinion as to whether this arrangement, as opposed to the explicit statutory regulation of GSS officers, is an ideal arrangement.

 
The Means Employed for Interrogation Purposes

21. As we have seen, GSS investigators are endowed with the authority to conduct interrogations. What is the scope of these powers and do they include the use of physical means in the course of the interrogation? Can use be made of the physical means presently employed by GSS investigators—such as shaking, the “Shabach” position, and sleep deprivation—by virtue of the investigating powers given the GSS investigators? Let us note that the state did not argue before us that all the means employed by GSS investigators are permissible by virtue of the “law of interrogation.” Thus, for instance, the state did not make the argument that shaking is permitted simply because it is an “ordinary” method of investigation in Israel. Even so, it was argued that some of the physical means employed by the GSS investigators are permitted by the “law of interrogation” itself. For instance, this is the case with respect to some of the physical means applied in the context of waiting in the “Shabach” position—the placing of the head covering to prevent communication between the suspects, the playing of loud music to prevent the passing of information between suspects, the tying of the suspect’s hands to a chair for the investigators’ protection, and the deprivation of sleep, as necessary from the needs of the interrogation. Does the “law of interrogation” sanction the use of these physical means?

22. An interrogation, by its very nature, places the suspect in a difficult position. “The criminal’s interrogation,” wrote Justice Vitkon over twenty years ago, “is not a negotiation process between two open and honest merchants, conducting their affairs in mutual trust.” Cr. A 216/74 Cohen v The State of Israel, at 352. An interrogation is a “competition of minds,” in which the investigator attempts to penetrate the suspect’s mind and elicit the information that the investigator seeks to obtain. Quite accurately, it was noted that:

Any interrogation, be it the fairest and most reasonable of all, inevitably places the suspect in embarrassing situations, burdens him, penetrates the deepest crevices of his soul, while creating serious emotional pressure.

See Y. Kedmi, On Evidence 25 (1991)

Indeed, the authority to conduct interrogations, like any administrative power, is designed for a specific purpose, and must be exercised in conformity with the basic principles of the democratic regime. In setting out the rules of interrogation, two values clash.  On the one hand, lies the desire to uncover the truth, in accord with the public interest in exposing crime and preventing it. On the other hand is the need to protect the dignity and liberty of the individual being interrogated. This having been said, these values are not absolute. A democratic, freedom-loving society does not accept that investigators may use any means for the purpose of uncovering the truth. “The interrogation practices of the police in a given regime,” noted Justice Landau, “are indicative of a regime’s very character” Cr. A. 264/65 Artzi v. The Government’s Legal Advisor. At times, the price of truth is so high that a democratic society is not prepared to pay. See A. Barak, On Law, Judging and Truth, 27 Mishpatim 11, 13 (1997).  To the same extent, however, a democratic society, desirous of liberty, seeks to fight crime and, to that end, is prepared to accept that an interrogation may infringe the human dignity and liberty of a suspect—provided that it is done for a proper purpose and that the harm does not exceed that which is necessary. Concerning the collision of values, with respect to the use of evidence obtained in a violent police interrogation, Justice H. Cohen opined in Cr. A. 183/78 Abu Midjim v. The State of Israel, at 546:

On the one hand, it is our duty to ensure that human dignity be protected; that it not be harmed at the hands of those who abuse it, and that we do all that we can to restrain police investigators from prohibited and criminal means. On the other hand, it is also our duty to fight the growing crime rate which destroys the good in our country, and to prevent the disruption of public peace by violent criminals.

Our concern, therefore, lies in the clash of values and the balancing of conflicting values. The balancing process results in the rules for a "reasonable interrogation." See Bein, The Police Investigation—Is There Room for Codification of the ‘Laws of the Hunt’, 12 Iyunei Mishpat 129 (1987). These rules are based, on the one hand, on preserving the “human image” of the suspect, see Cr. A. 115/82 Mouadi v. The State of Israel, at 222-24, and on preserving the “purity of arms” used during the interrogation. Cr. A. 183/78, supra. On the other hand, these rules take into consideration the need to fight crime in general, and terrorist attacks in particular. These rules reflect “a degree of reasonableness, straight thinking, and fairness.” See Kedmi, supra, at 25. The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric.

23. It is not necessary for us to engage in an in-depth inquiry into the “law of interrogation” for the purposes of the petitions before us. These laws vary, depending on the context. For instance, the law of interrogation is different in the context of an investigator’s potential criminal liability, and in the context of admitting evidence obtained by questionable means. Here we deal with the “law of interrogation” as a power of an administrative authority. See Bein supra. The “law of interrogation” by its very nature, is intrinsically linked to the circumstances of each case. This having been said, a number of general principles are nonetheless worth noting.

First, a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment, and free of any degrading conduct whatsoever.  There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation. F.H. 3081/91 Kozli v. The State of Israel, at 446. Human dignity also includes the dignity of the suspect being interrogated. Compare HCJ 355/59 Catlan v. Prison Security Services, at 298 and C.A.4463/94 Golan v. Prison Security Services. This conclusion is in accord with international treaties, to which Israel is a signatory, which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment.” See M. Evans & R. Morgan, Preventing Torture 61 (1998); N.S. Rodley, The Treatment of Prisoners under International Law 63 (1987). These prohibitions are “absolute.” There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspect’s body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can lead to the investigator being held criminally liable. See, e.g., the Penal Law: § 277. Cr. A. 64/86 Ashash v. The State of Israel (unreported decision).

Second, a reasonable investigation is likely to cause discomfort. It may result in insufficient sleep. The conditions under which it is conducted risk being unpleasant. Of course, it is possible to conduct an effective investigation without resorting to violence. Within the confines of the law, it is permitted to resort to various sophisticated techniques. Such techniques—accepted in the most progressive of societies—can be effective in achieving their goals. In the end result, the legality of an investigation is deduced from the propriety of its purpose and from its methods. Thus, for instance, sleep deprivation for a prolonged period, or sleep deprivation at night when this is not necessary to the investigation time-wise, may be deemed disproportionate.

From the General to the Particular

24. We shall now turn from the general to the particular. Clearly, shaking is a prohibited investigation method. It harms the suspect’s body. It violates his dignity. It is a violent method which can not form part of a legal investigation. It surpasses that which is necessary. Even the state did not argue that shaking is an “ordinary” investigatory method which every investigator, whether in the GSS or the police, is permitted to employ. The argument before us was that the justification for shaking is found in the “necessity defense.” That argument shall be dealt with below. In any event, there is no doubt that shaking is not to be resorted to in cases outside the bounds of “necessity” or as part of an “ordinary” investigation.

25. It was argued before the Court that one of the employed investigation methods consists of compelling the suspect to crouch on the tips of his toes for periods of five minutes. The state did not deny this practice. This is a prohibited investigation method. It does not serve any purpose inherent to an investigation. It is degrading and infringes an individual’s human dignity.

26. The “Shabach” method is composed of several components: the cuffing of the suspect, seating him on a low chair, covering his head with a sack, and playing loud music in the area.  Does the general power to investigate authorize any of the above acts? Our point of departure is that there are actions which are inherent to the investigatory power. Compare C.A. 4463/94, supra. Therefore, we accept that the suspect’s cuffing, for the purpose of preserving the investigators’ safety, is included in the general power to investigate. Compare HCJ 8124/96 Mubarak v. The GSS (unreported decision). Provided the suspect is cuffed for this purpose, it is within the investigator’s authority to cuff him. The state’s position is that the suspects are indeed cuffed with the intention of ensuring the investigators’ safety or to prevent the suspect from fleeing from legal custody. Even petitioners agree that it is permissible to cuff a suspect in such circumstances and that cuffing constitutes an integral part of an interrogation. The cuffing associated with the “Shabach” position, however, is unlike routine cuffing. The suspect is cuffed with his hands tied behind his back. One hand is placed inside the gap between the chair’s seat and back support, while the other is tied behind him, against the chair’s back support. This is a distorted and unnatural position. The investigators’ safety does not require it. Similarly, there is no justification for handcuffing the suspect’s hands with especially small handcuffs, if this is in fact the practice. The use of these methods is prohibited. As has been noted, “cuffing that causes pain is prohibited.” Mubarak supra. Moreover, there are other ways of preventing the suspect from fleeing which do not involve causing pain and suffering.

27. The same applies to seating the suspect in question in the “Shabach” position. We accept that seating a man is inherent to the investigation. This is not the case, however, when the chair upon which he is seated is a very low one, tilted forward facing the ground, and when he is seated in this position for long hours. This sort of seating is not authorized by the general power to interrogate. Even if we suppose that the seating of the suspect on a chair lower than that of his investigator can potentially serve a legitimate investigation objective—for instance, to establish the “rules of the game” in the contest of wills between the parties, or to emphasize the investigator’s superiority over the suspect—there is no inherent investigative need to seat the suspect on a chair so low and tilted forward towards the ground, in a manner that causes him real pain and suffering.  Clearly, the general power to conduct interrogations does not authorize seating a suspect on a tilted chair, in a manner that applies pressure and causes pain to his back, all the more so when his hands are tied behind the chair, in the manner described. All these methods do not fall within the sphere of a “fair” interrogation. They are not reasonable. They infringe the suspect’s dignity, his bodily integrity and his basic rights in an excessive manner. They are not to be deemed as included within the general power to conduct interrogations.

28. We accept that there are interrogation related concerns regarding preventing contact between the suspect under interrogation and other suspects, and perhaps even between the suspect and the interrogator. These concerns require means to prevent the said contact. The need to prevent contact may, for instance, flow from the need to safeguard the investigators’ security, or the security of the suspects and witnesses. It can also be part of the “mind game” which pits the information possessed by the suspect, against that found in the hands of his investigators. For this purpose, the power to interrogate—in principle and according to the circumstances of each particular case—may include the need to prevent eye contact with a given person or place. In the case at bar, this was the explanation provided by the state for covering the suspect’s head with a sack, while he is seated in the “Shabach” position.  From what was stated in the declarations before us, the suspect’s head is covered with a sack throughout his “wait” in the “Shabach” position.  It was argued that the head covering causes the suspect to suffocate. The sack is large, reaching the shoulders of the suspect. All these methods are not inherent to an interrogation. They are not necessary to prevent eye contact between the suspect being interrogated and other suspects.  Indeed, even if such contact is prevented, what is the purpose of causing the suspect to suffocate?  Employing this method is not related to the purpose of preventing the said contact and is consequently forbidden. Moreover, the statements clearly reveal that the suspect’s head remains covered for several hours, throughout his wait. For these purposes, less harmful means must be employed, such as letting the suspect wait in a detention cell. Doing so will eliminate any need to cover the suspect’s eyes. In the alternative, the suspect’s eyes may be covered in a manner that does not cause him physical suffering. For it appears that, at present, the suspect’s head covering—which covers his entire head, rather than eyes alone—for a prolonged period of time, with no essential link to the goal of preventing contact between the suspects under investigation, is not part of a fair interrogation. It harms the suspect and his dignity. It degrades him. It causes him to lose his sense of time and place. It suffocates him. All these things are not included in the general authority to investigate. In the cases before us, the State declared that it will make an effort to find a “ventilated” sack. This is not sufficient. The covering of the head in the circumstances described, as distinguished from the covering of the eyes, is outside the scope of authority and is prohibited. 

29. Cutting off the suspect from his surroundings can also include preventing him from listening to what is going on around him. We are prepared to assume that the authority to investigate an individual may include preventing him from hearing other suspects under investigation or voices and sounds that, if heard by the suspect, risk impeding the interrogation’s success. At the same time, however, we must examine whether the means employed to accomplish this fall within the scope of a fair and reasonable interrogation. In the case at bar, the detainee is placed in the “Shabach” position while very loud music is played. Do these methods fall within the scope or the general authority to conduct interrogations? Here too, the answer is in the negative. Being exposed to very loud music for a long period of time causes the suspect suffering. Furthermore, the entire time, the suspect is tied in an uncomfortable position with his head covered. This is prohibited. It does not fall within the scope of the authority to conduct a fair and effective interrogation. In the circumstances of the cases before us, the playing of loud music is a prohibited.    

30. To the above, we must add that the "Shabach" position employs all the above methods simultaneously. This combination gives rise to pain and suffering. This is a harmful method, particularly when it is employed for a prolonged period of time. For these reasons, this method is not authorized by the powers of interrogation. It is an unacceptable method. "The duty to safeguard the detainee's dignity includes his right not to be degraded and not to be submitted to sub-human conditions in the course of his detention, of the sort likely to harm his health and potentially his dignity." Cr. A. 7223/95 The State of Israel v. Rotenstein.

A similar—though not identical—combination of interrogation methods were discussed in the case of Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B) at 3 (1976). In that case, the Court examined five interrogation methods used by England to investigate detainees suspected of terrorist activities in Northern Ireland. The methods included protracted standing against a wall on the tip of one's toes, covering of the suspect's head throughout the detention (except during the actual interrogation), exposing the suspect to very loud noise for a prolonged period of time, and deprivation of sleep, food and drink. The Court held that these methods did not constitute "torture." However, since they subjected the suspect to "inhuman and degrading" treatment, they were nonetheless prohibited.

31. The interrogation of a person is likely to be lengthy, due to the suspect's failure to cooperate, the complexity of the information sought, or in light of the need to obtain information urgently and immediately. See, e.g., Mubarak supra; HCJ 5318/95 Hajazi v. GSS (unreported decision). Indeed, a person undergoing interrogation cannot sleep like one who is not being interrogated. The suspect, subject to the investigators' questions for a prolonged period of time, is at times exhausted. This is often the inevitable result of an interrogation.  This is part of the "discomfort" inherent to an interrogation. This being the case, depriving the suspect of sleep is, in our opinion, included in the general authority of the investigator. Compare HCJ 3429/94 Shbana v. GSS (unreported decision). Justice Shamgar noted as such in Cr. A. 485/76 Ben Loulou v. The State of Israel (unreported decision):

The interrogation of crimes and, in particular, murder or other serious crimes, cannot be accomplished within an ordinary work day...The investigation of crime is essentially a game of mental resistance...For this reason, the interrogation is often carried out at frequent intervals. This, as noted, causes the investigation to drag on ...and requires diligent insistence on its momentum and consecutiveness.

The above described situation is different from one in which sleep deprivation shifts from being a "side effect" of the interrogation to an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or "breaking" him, it is not part of the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner beyond what is necessary.

32. All these limitations on an interrogation, which flow from the requirement that an interrogation be fair and reasonable, is the law with respect to a regular police interrogation. The power to interrogate granted to the GSS investigator is the same power the law bestows upon the ordinary police investigator. The restrictions upon the police investigations are equally applicable to GSS investigations. There is no statute that grants GSS investigators special interrogating powers that are different or more significant than those granted the police investigator. From this we conclude that a GSS investigator, whose duty it is to conduct the interrogation according to the law, is subject to the same restrictions applicable to police interrogators.

Physical Means and the "Necessity" Defense

33. We have arrived at the conclusion that GSS personnel who have received permission to conduct interrogations, as per the Criminal Procedure Statute [Testimony], are authorized to do so. This authority—like that of the police investigator—does not include most of the physical means of interrogation in the petition before us. Can the authority to employ these methods be anchored in a legal source beyond the authority to conduct an interrogation? This question was answered by the state in the affirmative. As noted, our law does not contain an explicit authorization permitting the GSS to employ physical means. An authorization of this nature can, however, in the state’s opinion, be obtained in specific cases by virtue of the criminal law defense of “necessity,” as provided in section 34(1) of the Penal Law. The statute provides:

A person will not bear criminal liability for committing any act immediately necessary for the purpose of saving the life, liberty, body or property, of either himself or his fellow person, from substantial danger of serious harm, in response to particular circumstances during a specific time, and absent alternative means for avoiding the harm.

The state’s position is that by virtue of this defense against criminal liability, GSS investigators are authorized to apply physical means—such as shaking—in the appropriate circumstances and in the absence of other alternatives, in order to prevent serious harm to human life or limb. The state maintains that an act committed under conditions of “necessity” does not constitute a crime. Instead, the state sees such acts as worth committing in order to prevent serious harm to human life or limb. These are actions that society has an interest in encouraging, which should be seen as proper under the circumstances. In this, society is choosing the lesser evil. Not only is it legitimately permitted to engage in fighting terrorism, it is our moral duty to employ the means necessary for this purpose. This duty is particularly incumbent on the state authorities—and, for our purposes, on the GSS investigators—who carry the burden of safeguarding the public peace. As this is the case, there is no obstacle preventing the investigators’ superiors from instructing and guiding them as to when the conditions of the “necessity” defense are fulfilled. This, the state contends, implies the legality of the use of physical means in GSS interrogations.

In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information? The state answers in the affirmative. The use of physical means should not constitute a criminal offence, and their use should be sanctioned, according to the state, by the “necessity” defense.

34. We are prepared to assume, although this matter is open to debate, that the “necessity defense” is available to all, including an investigator, during an interrogation, acting in the capacity of the state. See A. Dershowitz, Is it Necessary to Apply ‘Physical Pressure’ to Terrorists—And to Lie About It?, 23 Israel L. Rev. 193 (1989); K. Bernsmann, Private Self-Defense and Necessity in German Penal Law and in the Penal Law Proposal— Some Remarks, 30 Israel L. Rev. 171, 208-10 (1998). Likewise, we are prepared to accept—although this matter is equally contentious—that the “necessity defense” can arise in instances of “ticking bombs,” and that the phrase "immediate need" in the statute refers to the imminent nature of the act rather than that of the danger. Hence, the imminence criteria is satisfied even if the bomb is set to explode in a few days, or even in a few weeks, provided the danger is certain to materialize and there is no alternative means of preventing it. See M. Kremnitzer, The Landau Commission Report—Was the Security Service Subordinated to the Law or the Law to the Needs of the Security Service?, 23 Israel L. Rev. 216, 244-47 (1989). In other words, there exists a concrete level of imminent danger of the explosion’s occurrence. See M. Kremnitzer & R. Segev, The Petition of Force in the Course of GSS Interrogations- A Lesser Evil?, 4 Mishpat U’Memshal 667, 707 (1989); See also S.Z. Feller, Not Actual “Necessity” but Possible “Justification”; Not “Moderate Pressure”, but Either “Unlimited” or “None at All”, 23 Israel L. Rev. 201, 207 (1989).

Consequently we are prepared to presume, as was held by the Report of the Commission of Inquiry, that if a GSS investigator—who applied physical interrogation methods for the purpose of saving human life—is criminally indicted, the “necessity defense” is likely to be open to him in the appropriate circumstances. See Cr. A. 532/91 Anonymous v. The State of Israel (unreported decision). A long list of arguments, from the fields of ethics and political science, may be raised in support of and against the use of the “necessity defense.” See Kremnitzer & Segev, supra, at 696; M.S. Moor, Torture and the Balance of Evils, 23 Israel L. Rev. 280 (1989); L. Shelf, The Lesser Evil and the Lesser Good—On the Landau Commission’s Report, Terrorism and Torture, 1 Plilim 185 (1989); W.L. & P.E. Twining, Bentham on Torture, 24 Northern Ireland Legal Quarterly 305 (1973); D. Stetman, The Question of Absolute Morality Regarding the Prohibition on Torture, 4 Mishpat U’ Mimshal 161, 175 (1997); A. Zuckerman, Coersion and the Judicial Ascertainment of  Truth, 23 Israel L. Rev. 357 (1989). This matter, however, has already been decided under Israeli law. Israeli penal law recognizes the “necessity defense.”                               

 35. Indeed, we are prepared to accept that, in the appropriate circumstances, GSS investigators may avail themselves of the “necessity defense” if criminally indicted. This, however, is not the issue before this Court. We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect. We are dealing with a different question. The question before us is whether it is possible, ex ante, to establish permanent directives setting out the physical interrogation means that may be used under conditions of “necessity.” Moreover, we must decide whether the “necessity defense” can constitute a basis for the authority of a GSS investigator to investigate, in the performance of his duty.  According to the state, it is possible to imply from the “necessity defense”—available post factum to an investigator indicted of a criminal offence—the ex ante legal authorization to allow the investigator to use physical interrogation methods. Is this position correct?

36. In the Court’s opinion, the authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the “necessity defense.” The “necessity defense” does not constitute a source of authority, which would allow GSS investigators to make use physical means during the course of interrogations.  The reasoning underlying our position is anchored in the nature of the “necessity defense.” The defense deals with cases involving an individual reacting to a given set of facts. It is an improvised reaction to an unpredictable event. See Feller, supra at 209. Thus, the very nature of the defense does not allow it to serve as the source of authorization. Authorization of administrative authority is based on establishing general, forward looking criteria, as noted by Professor Enker:

Necessity is an after-the-fact judgment based on a narrow set of considerations in which we are concerned with the immediate consequences, not far-reaching and long-range consequences, on the basis of a clearly established order of priorities of both means and ultimate values...The defense of necessity does not define a code of primary normative behavior. Necessity is certainly not a basis for establishing a broad detailed code of behavior such as how one should go about conducting intelligence interrogations in security matters, when one may or may not use force, how much force may be used and the like. 

See A. Enker, The Use of Physical Force in Interrogations and the Necessity Defense, in Israel and International Human Rights Law: The Issue of Torture 61, 62 (1995). In a similar vein, Kremnitzer and Segev note:

The basic rationale underlying the necessity defense is the impossibility of establishing accurate rules of behavior in advance, appropriate in concrete emergency situations, whose circumstances are varied and unexpected. From this it follows, that the necessity defense is not well suited for the regulation of a general situation, the circumstances of which are known and may repeat themselves. In such cases, there is no reason for not setting out the rules of behavior in advance, in order that their content be determined in a thought out and well-planned manner, which would allow them to apply in a uniform manner to all.

The “necessity defense” has the effect of allowing one who acts under the circumstances of “necessity” to escape criminal liability. The “necessity defense” does not possess any additional normative value. It can not authorize the use of physical means to allow investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act—due to the “necessity defense”—does not in itself authorize the act and the concomitant infringement of human rights. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights be prescribed by statute. The lifting of criminal responsibility does not imply authorization to infringe a human right. It shall be noted that the Commission of Inquiry did not conclude that the “necessity defense” is the source of authority for employing physical means by GSS investigators during the course of their interrogations. All that the Commission of Inquiry determined was that, if an investigator finds himself in a situation of “necessity,” forcing him to choose the “lesser evil”—harming the suspect for the purpose of saving human lives—the “necessity defense” shall be available to him. Indeed, the Commission of Inquiry noted that, “the law itself must ensure a proper framework governing the actions of the security service with respect to the interrogation of hostile terrorist activities and the related problems particular to it.” Id. at 328.

37. In other words, general directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not in defenses to criminal liability. The principle of “necessity” cannot serve as a basis of authority. See Kremnitzer, supra at 236. If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability. This release would not flow from the “necessity defense,” but rather from the “justification” defense. This defense is provided for in section 34(13) of the Penal Law, which states:

A person shall not bear criminal liability for an act committed in one of the following cases:

(1) He was obliged or authorized by law to commit it.

This "justification" defense to criminal liability is rooted in an area outside the criminal law. This “external” law serves as a defense to criminal liability. This defense does not rest upon “necessity,” which is “internal” to the Penal Law itself. Thus, for instance, where the question of when an officer is authorized to apply deadly force in the course of detention arises, the answer is found in the laws of detention, which is external to the Penal Law. If a man is killed as a result of this application of force, the “justification” defense will likely come into play. See Cr. A. 486/88, Ankonina v. The Chief Army Prosecutor. The “necessity” defense cannot constitute the basis for rules regarding an interrogation. It cannot constitute a source of authority on which the individual investigator can rely on for the purpose of applying physical means in an investigation. The power to enact rules and to act according to them requires legislative authorization. In such legislation, the legislature, if it so desires, may express its views on the social, ethical and political problems of authorizing the use of physical means in an interrogation. Naturally, such considerations did not come before the legislature when the “necessity” defense was enacted. See Kremnitzer, supra, at 239-40.  The “necessity” defense is not the appropriate place for laying out these considerations. See Enker, supra, at 72.

Granting GSS investigators the authority to apply physical force during the interrogation of suspects suspected of involvement in hostile terrorist activities, thereby harming the suspect's dignity and liberty, raises basic questions of law and society, of ethics and policy, and of the rule of law and security. These questions and the corresponding answers must be determined by the legislative branch. This is required by the principle of the separation of powers and the rule of law, under our understanding of democracy. See HCJ 3267/97 Rubinstein v. Minister of Defense.

38. We conclude, therefore, that, according to the existing state of the law, neither the government nor the heads of the security services have the authority to establish directives regarding the use of physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general rules which can be inferred from the very concept of an interrogation itself. Similarly, the individual GSS investigator—like any police officer—does not possess the authority to employ physical means that infringe a suspect’s liberty during the interrogation, unless these means are inherent to the very essence of an interrogation and are both fair and reasonable.

An investigator who employs these methods exceeds his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the “necessity defense.” Provided the conditions of the defense are met by the circumstances of the case, the investigator may find refuge under its wings. Just as the existence of the “necessity defense” does not bestow authority, the lack of authority does not negate the applicability of the necessity defense or of other defenses from criminal liability. The Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand trial, if they claim to have acted from “necessity.” A statutory provision is necessary to authorize the use of physical means during the course of an interrogation, beyond what is permitted by the ordinary “law of investigation,” and in order to provide the individual GSS investigator with the authority to employ these methods. The “necessity defense” cannot serve as a basis for such authority.

A Final Word

39. This decision opened with a description of the difficult reality in which Israel finds herself. We conclude this judgment by revisiting that harsh reality. We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.

This having been said, there are those who argue that Israel’s security problems are too numerous, and require the authorization of physical means.  Whether it is appropriate for Israel, in light of its security difficulties, to sanction physical means is an issue that must be decided by the legislative branch, which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The debate must occur there. It is there that the required legislation may be passed, provided, of course, that the law “befit[s] the values of the State of Israel, is enacted for a proper purpose, and [infringes the suspect's liberty] to an extent no greater than required." See article 8 of the Basic Law: Human Dignity and Liberty.            

40. Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves. When we sit to judge, we ourselves are judged. Therefore, in deciding the law, we must act according to our purest conscience. We recall the words of Deputy President Landau, in HCJ 390/79 Dawikat v. The State of Israel, at 4:

We possess proper sources upon which to construct our judgments and have no need—and, indeed, are forbidden—to allow our personal views as citizens to influence our decisions. Still, I fear that the Court will appear to have abandoned its proper role and to have descended into the whirlwind of public debate; that its decision will be acclaimed by certain segments of the public, while others will reject it absolutely. It is in this sense that I see myself as obligated to rule in accordance with the law on any matter properly brought before the Court. I am forced to rule in accordance with the law, in complete awareness that the public at large will not be interested in the legal reasoning behind our decision, but rather in the final result. Conceivably, the stature of the Court as an institution that stands above the arguments that divide the public will be damaged.  But what can we do, for this is our role and our obligation as judges?

The Commission of Inquiry pointed to the “difficult dilemma between the imperative to safeguard the very existence of the State of Israel and the lives of its citizens, and between the need to preserve its character—a country subject to the rule of law and basic moral values.” Report of the Commission, at 326. The commission rejected an approach that would consign our fight against terrorism to the twilight shadows of the law. The commission also rejected the “ways of the hypocrites, who remind us of their adherence to the rule of law, even as they remain willfully blind to reality.” Id. at 327. Instead, the Commission chose to follow “the way of truth and the rule of law.” Id. at 328. In so doing, the Commission of Inquiry outlined the dilemma faced by Israel in a manner open to examination to all of Israeli society.

Consequently, it is decided that the order nisi be made absolute. The GSS does not have the authority to “shake” a man, hold him in the “Shabach” position (which includes the combination of various methods, as mentioned in paragraph 30), force him into a “frog crouch” position

and deprive him of sleep in a manner other than that which is inherently required by the interrogation. Likewise, we declare that the “necessity defense,” found in the Penal Law, cannot serve as a basis of authority for interrogation practices, or for directives to GSS investigators, allowing them to employ interrogation practices of this kind. Our decision does not negate the possibility that the “necessity defense” will be available to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought.

Deputy President S. Levin

I agree.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice M. Cheshin

I agree.

Justice I. Zamir

I agree.

Justice T. Strasberg-Cohen

I agree.

HCJ 769/02

1.         Public Committee against Torture in Israel

2.         LAW — Palestinian Society for the Protection of Human Rights and the Environment

v.

1.         Government of Israel

2.         Prime Minister of Israel

3.         Minister of Defence

4.         Israel Defence Forces

5.         Chief of General Staff

6.         Shurat HaDin — Israel Law Centre and 24 others

The Supreme Court sitting as the High Court of Justice

[14 December 2006]

Before President Emeritus A. Barak, President D. Beinisch
and Vice-President E. Rivlin

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

Facts: In the armed conflict between the State of Israel and the terrorist organizations operating in the territories of Judaea, Samaria and the Gaza Strip the government of the State of Israel decided to adopt a policy of ‘targeted killings’ against terrorists. The petitioners asked the court to declare that this policy was illegal under international law and to order the respondents to desist from using the policy.

Held: Customary international law distinguishes between ‘combatants’ and ‘civilians.’ There is insufficient information for saying that a third category of ‘unlawful combatants’ has been recognized at this time by customary international law. Since terrorists do not satisfy the requirements of the definition of ‘combatants’ in international law, because inter alia they do not observe the laws and customs of war, they must be classified as civilians. Under article 51 of the First Additional Protocol to the 1977 Geneva Conventions, civilians may not in principle be targeted by armed forces. However, art. 51(3) of the First Protocol states that ‘Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.’ Therefore terrorists may be targeted by armed forces if ‘they take a direct part in hostilities.’ The targeting of terrorists by armed forces must satisfy the requirements of art. 51(3); the terrorists must ‘take a direct part in hostilities’ and the targeting of terrorists may be carried out ‘for such time’ as they do so. The principle of proportionality in carrying out these attacks should also be observed.

It cannot therefore be said that ‘targeted killings’ are prohibited by customary international law in every case, just as it cannot be said that they are permitted by customary international law in every case. Each case should be examined prospectively by the military authorities and retrospectively in an independent investigation, and the findings should be based on the merits of the specific case. These findings will be subject to the scrutiny of the court.

Petition denied.

Legislation cited:

Basic Law: Human Dignity and Liberty, s. 8.

Basic Law: the Army, s. 1.

Basic Law: the Government, s. 40(b).

Government and Justice Arrangements Ordinance, 5748-1948, s. 18.

Internment of Unlawful Combatants, 5762-2002, s. 2.

Penal Law, 5737-1977, s. 34M(1).

Israeli Supreme Court cases cited:

[1]        HCJ 5872/01 Barakeh v. Prime Minister [2002] IsrSC 56(3) 1.

[2]        HCJ 9255/00 Al-Saka v. State of Israel (unreported).

[3]        HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria (unreported).

[4]        HCJ 9293/01 Barakeh v. Minister of Defence [2002] IsrSC 56(2) 509.

[5]        HCJ 3114/02 Barakeh v. Minister of Defence [2002] IsrSC 56(3) 11; [2002-3] IsrLR 39.

[6]        HCJ 3451/02 Almadani v. Minister of Defence [2002] IsrSC 56(3) 30; [2002-3] IsrLR 47.

[7]        HCJ 8172/02 Ibrahim v. IDF Commander in West Bank (unreported).

[8]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

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

[10]     HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [2004] IsrSC 58(5) 385; [2004] IsrLR 200.

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

[12]     CrimA 174/54 Stampeper v. Attorney-General [1956] IsrSC 10 5.

[13]     CrimA 336/61 Eichman v. Attorney-General [1963] IsrSC 17(3) 2033.

[14]     LCA 7092/94 Her Majesty the Queen in Right of Canada v. Edelson [1997] IsrSC 51(1) 625; [1997] IsrLR 403.

[15]     HCJ 785/87 Afu v. IDF Commander in Gaza Strip [1988] IsrSC 42(2) 4.

[16]     HCJ 69/81 Abu Ita v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(2) 197.

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

[18]     HCJ 698/80 Kawasma v. Minister of Defence [1981] IsrSC 35(1) 617.

[19]     HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [2003] IsrSC 57(1) 385; [2002-3] IsrLR 123.

[20]     HCJ 10356/02 Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53.

[21]     HCJ 72/86 Zaloom v. IDF Commander in Judaea and Samaria [1987] IsrSC 41(1) 528.

[22]     HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [2003] IsrSC 57(1) 403.

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

[24]     HCJ 1890/03 Bethlehem Municipality v. State of Israel [2005] IsrSC 59(4) 736; [2005] (1) IsrLR 98.

[25]     HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [2005] (2) IsrLR 206.

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

[27]     HCJ 9593/04 Morar v. IDF Commander in Judaea and Samaria [2006] (2) IsrLR 56.

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

[29]     HCJ 2847/03 Alauna v. IDF Commander in Judaea and Samaria (unreported).

[30]     HCJ 9252/00 El-Saka v. State of Israel (unreported).

[31]     HCJ 4219/02 Gussin v. IDF Commander in Gaza Strip [2002] IsrSC 56(4) 608.

[32]     HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [2006] (1) IsrLR 443.

[33]     HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [2006] (2) IsrLR 352.

[34]     HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10 1.

[35]     HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800.

[36]     HCJ 9056/00 Kleiner v. Knesset Speaker [2001] IsrSC 55(4) 703.

[37]     HCJ 652/81 Sarid v. Knesset Speaker [1982] IsrSC 36(2) 197; IsrSJ 8 52.

[38]     HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.

[39]     HCJ 742/84 Kahane v. Knesset Speaker [1985] IsrSC 39(4) 85.

[40]     HCJ 606/78 Awib v. Minister of Defence [1979] IsrSC 33(2) 113.

[41]     HCJ 390/79 Dawikat v. Government of Israel [1980] IsrSC 34(1) 1.

[42]     HCJ 4481/91 Bargil v. Government of Israel [1993] IsrSC 47(4) 210; [1992-4] IsrLR 158.

[43]     HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [2002] IsrSC 53(3) 26.

[44]     HCJ 5488/04 Al-Ram Local Council v. Government of Israel (not yet reported).

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

[46]     HCJ 306/81 Flatto-Sharon v. Knesset Committee [1981] IsrSC 35(4) 118.

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

[48]     HCJ 3648/97 Stamka v. Minister of Interior [1999] IsrSC 53(2) 728.

[49]     HCJ 399/85 Kahane v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

[50]     HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [1990] IsrSC 44(1) 536.

[51]     HCJ 258/79 Amira v. Minister of Defence [1980] IsrSC 34(1) 90.

[52]     HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

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

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

[55]     HCJ 320/80 Kawasma v. Minister of Defence [1981] IsrSC 35(3) 113.

[56]     HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [1996] IsrSC 50(1) 353.

[57]     HCJFH 2161/96 Sharif v. Home Front Commander [1996] IsrSC 50(4) 485.

[58]     HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998-9] IsrLR 567.

[59]     HCJFH 10739 Minister of Defence v. Adalah Legal Centre for Arab Minority Rights in Israel (not yet reported).

Israeli District Court cases cited:

[60]     SFC 1158/02 (TA) State of Israel v. Barghouti (not yet reported).

Israeli Military Tribunal cases cited:

[61]     Military Prosecutor v. Kassem, 42 International Law Reports 470 (1971).

American cases cited:

[62]     Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

[63]     Ex Parte Quirin, 317 U.S. 1 (1942).

[64]     Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

Canadian cases cited:

[65]     Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248.

English cases cited:

[66]     Mohamed Ali v. Public Prosecutor [1969] 1 A.C. 430 (PC).

European Court of Human Rights cases cited:

[67]     Banković v. Belgium, 41 ILM 517 (2002).

[68]     Ergi v. Turkey, 32 E.H.R.R. 388 (2001).

[69]     McCann v. United Kingdom, 21 E.H.R.R. 97 (1995).

[70]     McKerr v. United Kingdom, 34 E.H.R.R. 553 (2001).

Inter-American Court of Human Rights cases cited:

[71]     Velásquez-Rodríguez v. Honduras, Inter-Am. Ct. H. R. (series C, no. 4) (1988); 28 ILM 291 (1989).

International Criminal Tribunal for Rwanda cases cited:

[72]     Prosecutor v. Akayesu, case no. ICTR-96-4-T (1998).

International Criminal Tribunal for the former Yugoslavia cases cited:

[73]     Prosecutor v. Tadić, ICTY case no. IT-94-1.

[74]     Prosecutor v. Blaškić, ICTY case IT-95-14-T (2000).

[75]     Prosecutor v. Strugar, ICTY case IT-01-42 (2005)

[76]     Prosecutor v. Kupreškić, ICTY case no. IT-95-16 (2000).

For the petitioners — A. Feldman, M. Sfard.

For respondents 1-5 — S. Nitzan.

For the sixth respondents — N. Darshan-Leitner, S. Lubrani.

JUDGMENT

President Emeritus A. Barak

The Government of Israel has adopted a policy of preventative attacks that cause the death of terrorists in Judaea, Samaria and the Gaza Strip. It brings about the death of those terrorists who plan, dispatch or carry out terror attacks in Israel and in the territories of Judaea, Samaria and the Gaza Strip, against both civilians and soldiers. Sometimes these attacks also harm innocent civilians. Does the state thereby act unlawfully? This is the question that is before us.

(1) Factual background

1.    In September 2000 the second Intifadeh broke out. A fierce barrage of terrorism was directed against the State of Israel and against Israelis wherever they were. The barrage of terror does not distinguish between combatants and civilians, or between women, men and children. The terror attacks are taking place both in the territories of Judaea, Samaria and the Gaza Strip and in the State of Israel. They target civilian centres, shopping centres and marketplaces, cafés and restaurants. In the last five years thousands of acts of terrorism have been committed against Israel. In the course of these, more than one thousand Israelis have been killed. Thousands of Israeli civilians have been injured. Thousands of Palestinians have also been killed and injured during this period.

2.    In its war against terrorism, the State of Israel has adopted various measures. As a part of the defence activity that is intended to deal with terrorist attacks, the state employs what it calls ‘the targeted killing policy.’ By means of this policy, the security forces operate in order to kill operatives in terrorist organizations who are involved in the planning, dispatching or commission of terror attacks against Israel. During the second Intifadeh, preventative attacks have been carried out throughout Judaea, Samaria and the Gaza Strip. According to figures provided by the petitioners, from the time when these operations began until the end of 2005 almost three hundred operatives in terrorist organizations were killed in these attacks. More than thirty targeted killing attempts failed. Approximately one hundred and fifty civilians who were near the location of the targets of these killings were killed in these operations. Hundreds of others were injured. The targeted killings policy is the focus of this petition.

(2) The petitioners’ arguments

3.    The petitioners’ position is that the targeted killings policy is clearly illegal, contrary to international law, Israeli law and basic principles of human morality. It violates the human rights both of the targets of the attacks and of innocent bystanders who happen to be in the area of the attack, as these rights are recognized in Israeli and international law.

4.    The petitioners’ position is that the legal framework that governs the armed conflict between Israel and the terrorist organizations is not the laws of war but the laws that concern the enforcement of law and order in an occupied territory. The petitioners’ position in this regard underwent changes in the course of the petition, of which some were the result of changes that occurred in the respondents’ position. Originally it was argued that the laws of war mainly concern international conflicts, whereas the armed struggle between Israel and the Palestinians does not fall into the category of an international conflict. Therefore it is not the laws of war that apply to this dispute but the laws of policing and law enforcement. In their closing statement (of 1 September 2004) the petitioners agreed with the position that in our case we are dealing with an international conflict, but even in this framework there is no place for military operations that are governed by the laws of war. This is because Israel’s right to carry out military operations of self-defence under article 51 of the United Nations Charter of 1945 does not apply to the dispute under discussion. The right of self-defence is given to a state in response to an armed attack of another state. The territories are subject to a belligerent occupation of the State of Israel, and therefore article 51 does not apply at all to our case. Just as the state is unable to claim self-defence against its own population, so too it cannot claim self-defence against inhabitants who are subject to the occupation of its army. Against an occupied civilian population there is no right of self-defence but only a right to enforce the law in accordance with the laws of belligerent occupation. Therefore our case is subject to the laws of policing and law enforcement within the framework of the laws of occupation, and not the laws of war. In this framework, there is no place for killing suspects without due process, and without arrest and trial. The targeted killings violate the basic right to life and this violation has no defence or justification. The prohibition of arbitrary killing that is not required for self-defence is enshrined in the customary norms of international law. A prohibition of this kind derives also from the duties of the occupying power in an occupied territory vis-à-vis the occupied population, which constitutes a protected population under the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, and also according to the two additional protocols to the convention that were signed in 1977. All these laws reflect norms of customary international law and they bind Israel. According to the petitioners, the practice of states that fight terrorism indicates unequivocally an international custom according to which members of terrorist organizations are treated as criminals, and the criminal law, sometimes with the addition of special emergency powers, is what governs the methods of combating terrorism. The petitioner state as examples for this purpose the British struggle against the Irish terrorist organizations, the Spanish struggle against the Basque terrorist organizations, the German struggle against the terrorist organizations, the Italian struggle against the Red Brigades organization and the Turkish struggle against the Kurdish terrorist organizations.

5.    In the alternative, the petitioners claim that the targeted killing policy violates the rules of international law even if we apply the laws of war to the armed conflict between Israel and the Palestinians. These laws recognize only two statuses of persons — combatants and civilians. Combatants are legitimate targets for attack, but they also enjoy the rights that are granted in international law to combatants, including immunity against indictment and the right to a status of prisoners of war. Citizens enjoy protections and rights that are granted in international law to civilians in times of war. Inter alia, they are not a legitimate target for attacks. The status of civilians and the protection afforded to them are enshrined in common article 3 of the Geneva Conventions. This is a basic principle of customary international law. The petitioners’ position is that this classification of combatants and civilians is an exhaustive classification. There is no intermediate status and there is no third category of ‘unlawful combatants.’ Every person who is not a combatant and every person with regard to whom there is a doubt as to whether he is a combatant automatically has the status of a civilian and is entitled to the rights and protections given to civilians in times of war. Even a civilian who collaborates in combat activities is not an ‘unlawful combatant,’ but only a criminal civilian, and therefore he retains his status as a civilian. The petitioners therefore reject the state’s position that the terrorist organizations’ operatives should be regarded as unlawful combatants. The petitioners discuss how the state itself refuses to give these operatives the rights and the defences given in international law to combatants, such as the right to a status of a prisoner of war. The result is that the state wishes to treat them according to the worse of both worlds: as combatants, to justify killing them, and as civilians, for the purpose of arresting them and bringing them to trial. This result is unacceptable. The operatives of the terrorist organizations, even if they take part in combat activities, are not thereby excluded from the application of the rules of international law. The petitioners’ position is therefore that the operatives of the terrorist organizations should be regarded as having the status of civilians.

6.    The petitioners state that a civilian who takes part in combat may lose some of the protections given to civilians in times of war. But this is only when he takes a direct part in the combat activities, and only as long as this direct participation lasts. These two conditions are provided in article 51(3) of the First Additional Protocol to the 1977 Geneva Conventions (hereafter — the First Protocol). This article, with all of its conditions, reflects, according to the petitioners, a customary rule of international law. These conditions were adopted in international case law, and they are mentioned in additional international documents, as well as in the army manuals of most Western countries. In order to preserve the clear distinction between combatants and civilians, these conditions are given a narrow and precise interpretation. According to this interpretation, a civilian will lose his immunity against attack only when he actually takes a direct part in hostilities, and only during the time when this direct participation is continuing. Thus, for example, from the moment that the civilian returns home, and even if he intends to take part once again in hostilities at a later date, he is not a legitimate target for attack, although he can be arrested and brought to trial for his participation in the combat activities. The petitioners insist that the targeted killing policy, as it is implemented in practice and as the respondents expressly state, goes beyond these narrow limits. It targets civilians even when they are not participating directly in combat or hostile acts. The targeted killings are carried out in circumstances that do not satisfy the immediate and essential conditions which alone justify an attack on civilians. Therefore we are dealing with an illegal policy that constitutes a prohibited attack on civilian targets.

7.    The petitioners attached an expert opinion from Prof. Cassese, an expert in international law, who was the first president of the International Criminal Tribunal for crimes committed in the former Yugoslavia. In his opinion Prof. Cassese discusses the fundamental distinction in international law between civilians and combatants, which is enshrined, inter alia, in the Regulations Concerning the Laws and Customs of War on Land, which are appended to the fourth Hague Convention of 1907. Someone who does not fall within the definition of combatant is automatically a civilian. There is no third category of ‘unlawful combatants.’ Therefore persons who participate in various hostile acts without satisfying the definition of combatants have the status of civilians and are entitled to the protections granted to them by the laws of war. A civilian who participates in hostilities loses these protections and may become a legitimate target for an attack. But this is only if he is taking a direct part in hostilities, and only if the attack against him is carried out during the period of time when he is actually taking a direct part in the hostilities. This rule is enshrined in article 51(3) of the First Protocol, but it reflects a rule of customary international law. Prof. Cassese’s position is that the expressions ‘direct part’ and ‘period of time’ should be interpreted strictly and narrowly. A civilian who takes part in hostilities loses the protections given to civilians only during the period of time when he actually takes part directly in hostilities, such as when he is shooting or laying a mine. Even a citizen who is making preparations to carry out hostile activity may be considered someone who is taking a direct part in hostile acts, provided that he is openly carrying a weapon. When he puts down his weapon, or when he is not carrying out hostilities he ceases to be a legitimate target for an attack. Therefore someone who only provides assistance in planning a hostile act, or someone who trains or sends others to carry out hostilities is not a legitimate target for an attack. Indirect assistance of this kind to hostile activities may expose the citizen to arrest and trial, but it does not make him a legitimate target for an attack.

8.    The petitioners’ position is that the targeted killing policy, as it is implemented in practice, also violates the requirements of proportionality that constitute a part of both Israeli law and customary international law. The principle of proportionality is a central principle of the laws of war. It prohibits attacking even legitimate targets if the attack is expected to result in an excessively serious attack on the lives of innocent persons relative to the military advantage of the operation. This principle is enshrined in article 51(5)(B) of the First Protocol, which is a customary rule of war. The targeted killing policy does not satisfy this condition. Its perpetrators are aware that it may, sometimes almost certainly, result in death and injury to innocents. And this is indeed what happens time after time. Because of the modus operandi adopted within the framework of this policy, many of the preventative killing attempts end in the death and injury of innocent civilians. Thus, for example, on 22 July 2002 a bomb weighing 1,000 kg was dropped on the home of Salah Shehada, a wanted person, in a dense residential area in the city of Gaza. The bomb and the shockwave caused the death of the wanted person, his wife, his daughter and also twelve additional persons who lived nearby. Dozens of people were injured. This case, as well as other cases, illustrates damage caused by the targeted killing policy, which does not distinguish between terrorists and innocents. The petitioners’ position is, therefore, that the targeted killing policy does not satisfy the test of proportionality in the narrow sense. Moreover, according to the petitioners the policy also does not satisfy the second test of proportionality, which concerns the least harmful measure. According to the petitioners, the respondents make use of the targeted killing measure on a frequent basis, including when there are also other measures available for apprehending the persons suspected of terrorist activity. The petitioners point to the fact that during the second Intifadeh the security forces have made hundreds of arrests in those parts of Judaea, Samaria and the Gaza Strip that are under the exclusive control of the Palestinian Authority. These figures show that the security forces have the operational ability to arrest suspects even in areas under the exclusive control of the Palestinian Authority and to bring them to arrest and interrogation facilities. In these circumstances, there is no justification for making use of targeted killings. Finally, the petitioners discuss how the targeted killings policy is not immune from serious mistakes. The targets of the killings are not given an opportunity to protest their innocence. The targeted killing policy works in a secret world where the public eye does not see the evidence on which basis the targets are chosen for the killings. There is no judicial review before or after the targeted killing operations. At least in one case there is a concern that a mistake of identity was made and a man who had a similar name to a wanted person and lived in the same village was killed.

(3) The respondents’ reply

9.    In their preliminary reply to the petition, the respondents stated that a petition that is identical to the petition before us, both in substance and with regard to the arguments that were raised in it, was considered and denied by the Supreme Court (HCJ 5872/01 Barakeh v. Prime Minister [1], judgment of 29 January 2002). In this judgment it was held that ‘the choice of the method of combat that the respondents employ in order to prevent murderous terrorist attacks before they are committed is not one of the subjects in which this court will see fit to intervene.’ The respondents’ position is that this approach is a proper one. This petition, like its predecessor, seeks to bring the court into the battle zone in order to consider matters that are of a purely operational character, which are not justiciable. For these reasons the petition should be denied in limine. Notwithstanding, the respondents did not reiterate this argument in the supplementary pleadings that they filed.

10. On the merits, the respondents discuss the security background that led to the targeted killing policy. Since the end of September 2000, combat activities against Israel have been occurring in the territories of Judaea, Samaria and the Gaza Strip. As a result of these, more than one thousand Israeli citizens were killed in the years 2000-2005. Thousands more were injured. The security forces carried out various operations in order to contend with the combat activities and terrorism. In view of the armed conflict, these operations are subject to the laws of war, or the laws of armed conflicts that constitute a part of international law. The respondents’ position is that the court should reject the argument that Israel may only defend itself against terrorism by using law enforcement measures. There is no longer any dispute that a state may respond with military force to a terrorist attack against it, by virtue of its right to self-defence that is provided in article 51 of the United Nations charter, which allows a state to protect itself against an ‘armed attack.’ Even if there is a dispute among scholars with regard to the question of what is an ‘armed attack,’ there cannot be any doubt that the terrorist barrage against Israel satisfies the definition of an armed attack. Therefore Israel may use military force against the terrorist organizations. The respondents point to the fact that other countries have stopped regarding terrorist operations merely as criminal offences and have begun to make use of military measures against terrorist operations that are directed against them. This is especially the case when the terrorist acts are on a large scale and continue for a long period. The respondents’ position is that the question whether the laws of belligerent occupation apply to all the territories is not relevant to the question before us, since the question whether the targeted killing policy is legal will be determined in accordance with the laws of war, which apply both to an occupied territory and to an unoccupied territory, provided that an armed conflict is taking place there.

11. The respondents’ position is that the laws of war govern not only war in the classical sense, but also other armed disputes and conflicts. International law does not include an unambiguous definition of the concept of ‘armed conflict.’ But there is no doubt today that an armed conflict may take place between a state and groups or organizations that are not states, inter alia because of the military abilities and weapons in the possession of such organizations and their willingness to use them. The current dispute between Israel and the terrorist organizations is an armed conflict in which Israel is entitled to respond with military measures. This has also been upheld by the Supreme Court in a host of cases. With regard to the classification of the conflict, originally the respondents argued that it is an international conflict that is subject to the ordinary rules of war. In the closing reply (of 26 January 2004) the respondents said that the question of the conflict between Israel and the Palestinians is a complex question, and it has diverse aspects. In any case, there is no need to decide this for the purpose of the petition, since according to each of the categories the laws of armed conflict will apply to the state’s actions. These laws permit an attack on someone who is a party to the armed dispute and takes an active part in it, whether it is an international armed conflict or it is an armed conflict that is not international, and even if we are dealing with a new category of armed conflict that has developed in the last decade in international law, which concerns armed conflicts between states and terror organizations. According to each one of these categories, someone who is a party to the armed conflict and takes an active part in it is a combatant, and he may be attacked. The respondents’ position is that the terrorist organizations’ operatives are a party to the armed conflict between Israel and the terrorist organizations, within which framework they take an active part in the combat. Therefore they are legitimate targets for an attack as long as the armed conflict continues. Notwithstanding, they are not entitled to the rights of combatants under the Third Geneva Convention and the Hague Regulations since they do not distinguish themselves from the civilian population, and because they do not observe the laws of war. In view of this complex reality, the respondents’ position is that a third category of persons should be recognized, namely the category of unlawful combatants. Persons who fall into this category are combatants, and therefore they constitute a legitimate target for an attack. Notwithstanding, they are not entitled to all the rights given to lawful combatants, since they do not themselves observe the requirements of the laws of war. The respondents’ position is that the terror organizations’ operatives in the territories fall into the category of ‘unlawful combatants.’ The status of the terrorists who participate actively in the armed conflict is not the status of civilians. They are a party to the armed conflict, and therefore it is permitted to attack them. They do not observe the laws of war, and therefore they do not enjoy the rights and protections given to lawful combatants, who observe the requirements of the laws of war. The respondents’ position is therefore that according to each of the alternatives, ‘the state is permitted to kill someone who is fighting against it, in accordance with the basic principles of the laws of war that govern every armed conflict’ (para. 68 of the respondents’ reply of 26 January 2004).

12. Alternatively, the respondents’ position is that the targeted killing policy is lawful even if the court does not accept the argument that the terrorist organizations’ operatives are combatants that are a party to the armed conflict, and even if the court regards them as persons who have a civilian status. This is because the laws of armed conflict permit an attack on civilians who are taking a direct part in the combat activities. Indeed, as a rule the laws of war give civilians immunity from attacks. But a ‘civilian’ who takes a direct part in the hostilities loses his immunity and may be the target of an attack. This also means that it is permitted to attack civilians in order to frustrate intentions to carry out future or planned hostile activity. Any person who takes a direct part in the commission, planning or dispatching of hostilities that are intended against civilian or military targets is a legitimate target for attack. This exception reflects a customary rule of international law. The respondents’ position is that the condition of simultaneity provided in article 51(3) of the First Protocol, according to which a civilian who takes a direct part in hostilities may only be attacked at the time when he is taking part in the hostilities, does not bind Israel since it does not reflect a rule of customary international law. In this regard the respondents state that Israel, like other countries, was not a party to the First Protocol. Therefore it is permitted to attack civilians who are taking a direct part in hostilities even when they are not carrying them out. There is nothing that prevents attacking terrorists at any time and place, as long as they have not laid down their weapons and left the cycle of combat. Finally, the respondents’ position is that even if we regard art. 51(3) of the First Protocol, with all of its conditions, as a customary rule, the targeted killings policy satisfies its provisions. This is because they should be interpreted more broadly than the interpretation proposed by the petitioners. Thus the expression ‘hostilities’ should be interpreted to include acts such as the planning of terrorist attacks, the dispatching of terrorists and being in command of terrorist cells. There is no basis for Prof. Cassese’s position that ‘hostilities’ should include the use of weapons or the carrying of weapons. The expression ‘taking a direct part’ should also be given a broad interpretation, so that anyone who plans, commits or sends another person to carry out a terrorist attack will be regarded as someone who takes a direct part in hostilities. Finally, the condition of simultaneity should also be interpreted broadly so that it will be possible to attack a terrorist at any time that he is systematically involved in acts of terror. The respondents’ position is that the very restrictive interpretation of art. 51(3) that is proposed by the petitioners is unreasonable and outrageous. The petitioners’ position and the opinion submitted on their behalf imply that terrorists have immunity from attack for as long as they are planning terrorist attacks and this immunity is removed for a short time only, when the attack is actually being carried out. After the attack has been carried out, the immunity returns to protect the terrorists, even if it is known and clear that they are going home in order to plan and carry out the next attack. This interpretation allows someone who takes an active part in hostilities ‘to change hats’ as he wishes between a combatant’s hat and a civilian’s hat. This result is unthinkable. It is also inconsistent with the purpose of the exception, which is intended to allow the state to take action against civilians who take an active part in the struggle against it. The respondents’ conclusion is that the targeted killings policy satisfies the laws of war even if we regard the terrorists as civilians, and even if we regard the conditions set out in art. 51(3) of the First Protocol as customary rules.

13. The respondents’ position is that the targeted killings policy, as it is carried out in practice, satisfies the requirement of proportionality. The requirement of proportionality does not lead to the conclusion that it is prohibited to carry out military operations that may harm civilians. This requirement means that the harm to civilians should be proportionate to the security benefit that is likely to arise from the military operation. Moreover, the proportionality of the operation should be examined against the background of the uncertainty that inherently accompanies any combat activity, especially in view of the circumstances of the armed conflict between Israel and the terrorist organizations. The State of Israel satisfies the requirements of proportionality. Targeted killing operations are only carried out as an exceptional step, when there is no alternative to this activity. Its purpose is the saving of lives. It is considered at the highest levels of command. In every case an attempt is made to limit as much as possible the collateral damage that may be caused to civilians as a result of the targeted killing operation. In cases where the security establishment is of the opinion that there are other alternatives to the operation, these alternatives are implemented in so far as possible. Targeted killing missions have been postponed or cancelled on more than one occasion when it transpired that there was no possibility of carrying them out without endangering innocent persons disproportionately.

(4) The petition and the hearing thereof

14. The petition was filed on 24 January 2002, and after preliminary replies were filed it was set down for a hearing before a panel of three justices. After the first hearing on 18 April 2002 before Justices A. Barak, D. Dorner and I. Englard, the parties were asked to file supplementary statements that addressed a series of questions that were posed by the court. After the responses were filed, another hearing of the petition was held on 8 July 2003 before a panel of Justices A. Barak, T. Or and E. Mazza). During this, we considered the petitioners’ application for an interim order. The application was denied. At the request of the parties, additional time was given for the filing of supplementary statements. At the request of the petitioners, an additional hearing of the petition was held on 16 February 2005 before a panel of Justices A. Barak, M. Cheshin and D. Beinisch). During this the respondents submitted the prime minister’s statement at the Sharm El-Sheik conference according to which the State of Israel was suspending the use of the targeted killings policy. In view of this statement, we decided to defer the hearing of the petition to another date, in so far as this would be required. In the month of July 2005 the state began to employ the targeted killings policy once again. In view of this, at the request of the parties an additional hearing of the petition was held on 11 December 2005, before a panel of Justices A. Barak, M. Cheshin and D. Beinisch. At the end of this, we held that judgment would be given after further supplementary statements were filed by the parties. Pursuant to the decision of President D. Beinisch on 22 November 2006, Vice-President E. Rivlin replaced Vice-President M. Cheshin who had retired.

15. After the petition was filed, two applications were filed to join it. First on 22 July 2003 an application was filed by counsel for the petitioners on behalf of the National Lawyers Guild and the International Association of Democratic Lawyers to join the petition and to file written pleadings as amicus curiae. The respondents opposed the application. Subsequently an application was filed on 23 February 2004 on behalf of Shurat HaDin — Israel Law Centre and 24 additional applicants to join them as respondents in the petition. The petitioners opposed the application. We are deciding to grant the two applications and to join the applicants as parties to the petition. The pleadings on behalf of the amicus curiae support the main arguments of the petitioners. They also argue that the killing of religious and political leaders is contrary to international law and is not legitimate, whether in times of war or in times of peace. In addition, no use should be made of the targeted killings policy against anyone who is involved in terrorist activities except in cases where there is an immediate danger to human lives, and even then only in the absence of any other means of averting the danger. The pleadings of Shurat HaDin support the main arguments of the respondents. They also argue that the targeted killings are permitted, and even necessary, according to the principle of Jewish law ‘If someone comes to kill you, kill him first!’ (Babylonian Talmud, Berachot 58a) and according to the law of ‘Someone who is pursuing his fellow-man to kill him…’ (Mishnah, Sanhedrin 8, 7).

(5) The general normative framework

A.    An international armed conflict

16. The fundamental premise is that, since the Intifadeh began, a continuous state of armed conflict has existed between Israel and the various terrorist organizations that operate from Judaea, Samaria and the Gaza Strip (hereafter — the territories). The court has discussed the existence of this conflict in a host of judgments (see HCJ 9255/00 Al-Saka v. State of Israel [2]; HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria [3]; HCJ 9293/01 Barakeh v. Minister of Defence [4]; HCJ 3114/02 Barakeh v. Minister of Defence [5]; HCJ 3451/02 Almadani v. Minister of Defence [6]; HCJ 8172/02 Ibrahim v. IDF Commander in West Bank [7]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [8]). In one case I said:

‘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’ (HCJ 7015/02 Ajuri v. IDF Commander in West Bank [9], at p. 358 {87}).

This approach is consistent with the definition of an armed conflict in international literature (see O. Ben-Naftali and Y. Shani, International Law Between War and Peace (2006), at p. 142; Y. Dinstein, War, Aggression and Self-Defence (fourth edition, 2005), at p. 201; H. Duffy, The ‘War on Terror’ and the Framework of International Law (2005), at p. 219). It clearly reflects what has been occurring and is still occurring in the ‘territories.’ The situation was described in the supplementary closing arguments of the State Attorney’s Office (of 26 January 2004) as follows:

‘For more than three years the State of Israel has faced an unceasing, continuous and murderous barrage of attacks, which are directed against Israelis wherever they are, without any distinction between soldiers and civilians or between men, women and children. Within the framework of the current terror barrage, more than 900 Israelis have been killed from September 2000 until the present, and thousands of other Israelis have been injured. Thousands of Palestinians have also been killed and injured during this period. By way of comparison we should point out that the number of Israeli victims relative to the population of the State of Israel is several times greater than the percentage of victims who were killed in the United States in the events of September 11 relative to the population of the United States. As is well known, and as we have already pointed out, the events of September 11 were defined by the countries of the world and international organizations without any hesitation as an “armed attack” that justifies the use of force in reply.

The terror attacks are taking place both in Judaea, Samaria and the Gaza Strip (hereafter — the territories) and in the State of Israel itself. They are directed both against civilians, civilian population centres, shopping centres and marketplaces, and also against IDF forces and bases and facilities of the security forces. In these attacks the terrorist organizations employ measures that are of a purely military character, and what all of these measures have in common is their lethalness and callousness. These measures include shooting attacks, suicide attacks, the firing of mortars, the firing of rockets, the use of car bombs, etc.’ (at p. 30).

17. This armed conflict (or dispute) does not take place in a normative vacuum. It is subject to normative arrangements as to what is permitted and what is prohibited. I discussed this in one case where I said:

‘“Israel is not an island. It is a member of an international community...”. The military operations of the army are not conducted in a legal vacuum. There are legal norms — some from customary international law, some from international law enshrined in treaties to which Israel is a party, and some from the basic principles of Israeli law — which provide rules as to how military operations should be conducted’ (HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [10], at p. 391 {205-206}).

What are the normative arrangements that apply in the case of an armed conflict between Israel and the terrorist organizations that operate in the territories?

18. The normative arrangements that apply to the armed conflict between Israel and the terrorist organizations in the territories are complex. They focus mainly on the rules of international law concerning an international armed conflict (or dispute). The international character of an armed conflict between a state that is occupying a territory in a belligerent occupation and guerrillas and terrorists that come from that territory — including the armed dispute between Israel and the terrorist organizations in the territories — was discussed by Prof. Cassese, who said:

‘An armed conflict which takes place between an Occupying Power and rebel or insurgent groups — whether or not they are terrorist in character — in an occupied territory, amounts to an international armed conflict’ (A. Cassese, International Law (second edition, 2005), at p. 420).

These laws include the laws of belligerent occupation. But they are not limited to them alone. These laws apply to every case of an armed conflict of an international character — i.e., one that crosses the borders of the state — whether the place where the armed conflict is occurring is subject to a belligerent occupation or not. These laws constitute a part of the laws of the conduct of war (ius in bello). From the humanitarian viewpoint, they are a part of international humanitarian law. This humanitarian law is a special law (lex specialis) that applies in an armed conflict. Where this law has a lacuna, it can be filled by means of international human rights law (see the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep. 226, at p. 240; the advisory opinion of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) 43 ILM 1009; Banković v. Belgium [67]; see also Meron, ‘The Humanization of Humanitarian Law,’ 94 Am. J. Intl. L. 239 (2000)). In addition to the provisions of international law governing an armed conflict, the basic principles of Israeli public law are likely to apply. These basic principles are carried by every Israeli soldier in his backpack and they go with him wherever he goes (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 810; Ajuri v. IDF Commander in West Bank [9], at p. 365 {96}; Marabeh v. Prime Minister of Israel [8], at para. 14 of the judgment).

19. Significant parts of international law that deal with an armed conflict are of a customary nature. These customary laws are a part of Israeli law, ‘by virtue of the fact that the State of Israel is sovereign and independent’ (per Justice S.Z. Cheshin in CrimA 174/54 Stampeper v. Attorney-General [12], at p. 15; see also CrimA 336/61 Eichman v. Attorney-General [13]; LCA 7092/94 Her Majesty the Queen in Right of Canada v. Edelson [14], at p. 639 {416}, and the cases cited there; see also R. Lapidot, ‘The Place of Public International Law in Israeli Law,’ 19 Hebrew Univ. L. Rev. (Mishpatim) 809 (1990); R. Sabel, International Law (2003), at p. 29). This was well expressed by President Shamgar, who said:

‘According to the consistent case law of this court, customary international law is a part of Israeli law, subject to Israeli legislation containing a contrary provision’ (HCJ 785/87 Afu v. IDF Commander in Gaza Strip [15], at p. 35).

International law that is enshrined in international conventions (whether Israel is a party to them or not) and which does not involve the adoption of customary international law is not a part of the internal law of the State of Israel (see HCJ 69/81 Abu Ita v. IDF Commander in Judaea and Samaria [16], at p. 234, and Y. Zilbershatz, ‘Incorporating International Law in Israeli Law — The Law As It Is and As It Should Be,’ 24 Hebrew Univ. L. Rev. (Mishpatim) 317 (1994)). In the petitions before us, no question arises with regard to any conflicting Israeli legislation. Public law in Israel recognizes the Israel Defence Forces as ‘the army of the state’ (s. 1 of the Basic Law: the Army). The army is authorized ‘to do all the lawful actions that are required for the defence of the state and in order to achieve its national security goals’ (s. 18 of the Government and Justice Arrangements Ordinance, 5748-1948). The Basic Law: the Government recognizes the constitutionality of ‘military operations that are required for the purpose of protecting the state and public security’ (s. 40(b)). Naturally, these operations also include an armed conflict with terrorist organizations outside the borders of the state. We should also mention the defence against criminal liability provided in s. 34M(1) of the Penal Law, 5737-1977, according to which a person will not be liable under the criminal law for an act that ‘he was obliged or competent to do according to law.’ When the soldiers of the Israel Defence Forces operate in accordance with the laws of armed conflict, they are acting ‘according to law,’ and they have the defence of justification. By contrast, if they act contrary to the laws of armed conflict, they are likely to be liable, inter alia under the criminal law, for their actions. Indeed, the question before us should be considered within the framework of customary international law concerning an armed conflict. This is also the source for all the other laws that may be relevant under our internal law. Conventional international law that has no customary force is not a part of our internal law.

20. International law concerning the armed conflict between Israel and the terrorist organizations is enshrined in several legal sources (see Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), at p. 5). The main source is the Hague Convention (IV) Respecting the Laws and Customs of War on Land, 1907 (hereafter — the Hague Convention). The provisions of this convention, to which Israel is a party, have a status of customary international law (see Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 793; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [17], at p. 827 {283}; Ajuri v. IDF Commander in West Bank [9], at p. 364 {95-96}). In addition to this there is the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter — the Fourth Geneva Convention). Israel is a party to this convention. It was not adopted in Israeli legislation. Notwithstanding, its customary provisions are a part of the law of the State of Israel (see the opinion of Justice H.H. Cohn in HCJ 698/80 Kawasma v. Minister of Defence [18], at p. 638). It is well known that the position of the Government of Israel is that in principle the laws of belligerent occupation in the Fourth Geneva Convention do not apply with regard to the territories. Notwithstanding, Israel observes the humanitarian provisions of this convention (see Kawasma v. Minister of Defence [18]; Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 194; Ajuri v. IDF Commander in West Bank [9], at p. 364 {95-96}; HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [19], at p. 396 {136}; Beit Sourik Village Council v. Government of Israel [17], at p. 827 {283}; Marabeh v. Prime Minister of Israel [8], at para. 14 of the judgment). For the purposes of the petition before us this is sufficient. In addition, the laws concerning an international armed conflict are enshrined in the Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (‘the First Protocol’). Israel is not a party to this protocol, and it has not been adopted in Israeli legislation. Of course, the customary provisions of the First Protocol are a part of Israeli law.

21. Our premise is that the law that governs the armed conflict between Israel and the terrorist organizations in the territories is the international law that relates to an armed conflict or dispute. This is how this court has regarded the character of the dispute in the past, and this is how we are also continuing to regard it in the petition before us. According to this approach, the fact that the terrorist organizations and its members do not act on behalf of a state does not make the struggle merely an internal matter of the state (see Cassese, International Law, supra, at p. 420). Indeed, in today’s reality a terrorist organization may have a considerable military capacity, sometimes exceeding even the capacity of states. Dealing with these dangers cannot be limited merely to the internal affairs of a state and its criminal law. Contending with the risk of terror constitutes a part of international law that concerns armed conflicts of an international nature. Additional possibilities have been raised in legal literature (see Duffy, The ‘War on Terror’ and the Framework of International Law, supra, at p. 218; E. Gross, Democracy’s Struggle Against Terrorism: Legal and Moral Aspects (2004), at p. 585; O. Ben-Naftali and K. Michaeli, ‘ “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings,’ 36 Cornell Intl. L. J. 233 (2003); D. Jinks, ‘September 11 and the Law of War,’ 28 Yale J. I. L. 1 (2003)). According to the approach of Prof. Kretzmer, this armed dispute should be classified as a dispute that is not merely an internal-national dispute, nor should it be classified as being of an international character, but it has a mixed character, in which both international human rights law and international humanitarian law apply (see D. Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ 16 Eur. J. Int’l L. 171 (2000)); counsel for the state raised these possibilities before us and indicated the problems that they raise, without adopting any position with regard to them. As we have seen, the premise on which the Supreme Court has relied for years — and which also was always the premise of counsel for the state before the Supreme Court — is that the armed dispute is of an international character. In this judgment we are continuing with this approach. It should be noted that even those who think that the armed dispute between Israel and the terrorist organizations is not of an international character hold that it is subject to international humanitarian law or international human rights law (see Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ supra, at p. 194; Ben Naftali and Shani, ‘ “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings,’ supra, at p. 142, and Hamdan v. Rumsfeld [62]; Prosecutor v. Tadić [73], at para. 127; on non-international armed conflicts see: Y. Dinstein, C. Garraway, M. Schmitt, The Manual On Non-International Armed Conflict: With Commentary (2006)).

22. International law concerning armed conflicts is based on a delicate balance between two conflicting considerations (see Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 794; Centre for Defence of the Individual v. IDF Commander in West Bank [19], at p. 396 {136}; Beit Sourik Village Council v. Government of Israel [17], at p. 833 {290}). One concerns the humanitarian considerations that relate to anyone who is harmed as a result of the armed conflict. These considerations are based on human rights and dignity. The other concerns military considerations, which lie at the heart of the armed conflict. These considerations are based on military necessity and success (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 16). The balance between these considerations is the basis for the international law of armed conflicts. This was discussed by Prof. Greenwood, who said:

‘International humanitarian law in armed conflicts is a compromise between military and humanitarian requirements. Its rules comply with both military necessity and the dictates of humanity’ (Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts 32 (1995)).

In Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11] I said:

‘The Hague Regulations revolve around two main focal points: one is ensuring the legitimate security interests of the occupier of a territory that is subject to a belligerent occupation; the other is ensuring the needs of the civilian population in the territory that is subject to a belligerent occupation’ (ibid. [11], at p. 794).

In another case Justice A. Procaccia said that the Hague Convention authorizes the military commander to ensure two needs:

‘The first need is a military need and the second is a civilian-humanitarian need. The first focuses on concern for the security of the military force that is occupying the area, and the second concerns the responsibility for preserving the welfare of the inhabitants. Within the latter sphere, the area commander is responsible not only for maintaining order and ensuring the security of the inhabitants but also for protecting their rights, especially their constitutional human rights. The concern for human rights lies at the heart of the humanitarian considerations that the area commander must consider’ (HCJ 10356/02 Hass v. IDF Commander in West Bank [20], at p. 455 {65}).

In Beit Sourik Village Council v. Government of Israel [17] I added that:

‘The laws of belligerent occupation recognize the authority of the military commander to maintain security in the area and thereby to protect the security of his country and its citizens, but it makes the exercising of this authority conditional upon a proper balance between it and the rights, needs, and interests of the local population’ (ibid. [17], at p. 833 {290}).

Indeed —

‘Indeed, like in many other areas of the law, the solution is not one of “all or nothing.” The solution lies in finding the proper balance between the conflicting considerations. The solution is not to be found in giving absolute weight to one of the considerations; the solution lies in giving relative weight to the different considerations by balancing them in relation to the matter requiring a decision’ (Marabeh v. Prime Minister of Israel [8], at para. 29 of the judgment).

The result of this balance is that human rights are protected by the laws of armed conflict, but not to their full extent. The same is true with regard to military necessity. It may be realized, but not to its full extent. This balance reflects the relativity of human rights and the limitations of military necessity. The proper balance is not fixed. ‘In certain cases the emphasis is on military necessity whereas in other cases the emphasis is on the needs of the local population’ (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 794). What, then, are the factors that affect the proper balance?

23. A main factor that affects the proper balance is the identity of the person who is harmed or the target that is harmed in the armed conflict. This is the basic principle of distinction (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 82; Ben-Naftali and Shani, ‘ “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings,’ supra, at p. 151). Customary international law with regard to armed conflicts discusses a fundamental distinction between combatants and military targets, on the one hand, and non-combatants, i.e., civilians, and civilian targets on the other (see the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, supra, at p. 257; art. 48 of the First Protocol). According to the basic principle of distinction, the proper balance between the military needs of the state as opposed to combatants and military targets of the other party is different from the proper balance between the military needs of the state as opposed to civilians and civilian targets of the other party. As a rule, combatants and military targets are legitimate targets for a military attack. Their lives and bodies are subject to the risks of combat. It is permitted to kill and injure them. Notwithstanding, not every combat activity is permitted against them, nor is every military course of action permitted. Thus, for example, it is permitted to shoot them and kill combatants. But there is a prohibition against the treacherous killing of combatants or harming them in a manner that amounts to perfidy (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 198). Similarly the use of certain weapons is prohibited. A consideration of all this does not arise in the petition before us. Moreover, there are comprehensive laws that concern the status of prisoners of war. Thus, for example, prisoners of war may not be brought to a criminal trial because of their actual participation in the fighting, and they should be treated ‘humanely’ (art. 13 of the Third Geneva Convention). It is of course permitted to bring them to trial for war crimes that they committed during the hostilities. In contrast to the combatants and military targets there are the civilians and civilian targets. They may not be subjected to a military attack that is directed at them. Their lives and bodies are protected against the risks of combat, provided that they do not themselves take a direct part in the combat. This customary principle was formulated as follows:

‘Rule 1: The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

Rule 6: Civilians are protected against attack unless and for such time as they take a direct part in hostilities.

Rule 7: The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects’ (J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vol. 1, 2005), at pp. 3, 19, 25).

This approach, which protects the lives, bodies and property of civilians who do not take a direct part in an armed conflict, runs like a golden thread through the case law of the Supreme Court (see Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 794; HCJ 72/86 Zaloom v. IDF Commander in Judaea and Samaria [21], at p. 532; Almadani v. Minister of Defence [6], at p. 35 {53}; Ajuri v. IDF Commander in West Bank [9], at p. 365 {97}; Centre for Defence of the Individual v. IDF Commander in West Bank [19], at p. 396 {136}; HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [22], at p. 412; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [23], at p. 364 {191}; Hass v. IDF Commander in West Bank [20], at p. 456 {65}; Marabeh v. Prime Minister of Israel [8], at paras. 24-29 of the judgment; HCJ 1890/03 Bethlehem Municipality v. State of Israel [24], at para. 15; HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [25], at para. 23 of my opinion; I discussed this in Physicians for Human Rights v. IDF Commander in Gaza [10], which considered combat activity during the armed conflict in Rafah:

‘The basic injunction of international humanitarian law applicable in times of combat is that the local inhabitants are “… entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof…” (art. 27 of the Fourth Geneva Convention; see also art. 46 of the Hague Convention)… What underlies this basic provision is the recognition of the value of man, the sanctity of his life and the fact that he is entitled to liberty… His life or his dignity as a human being may not be harmed, and his dignity as a human being must be protected. This basic duty is not absolute. It is subject to “… such measures of control and security in regard to protected persons as may be necessary as a result of the war” (last part of art. 27 of the Fourth Geneva Convention). These measures may not harm the essence of the rights… They must be proportionate’ (ibid. [10], at p. 393 {208-209}).

Later in that case I said that:

‘The duty of the military commander, according to this basic rule, is twofold. First, he must refrain from operations that attack the local inhabitants. This duty is his “negative” obligation. Second, he must carry out acts required to ensure that the local inhabitants are not harmed. This is his “positive” obligation… Both these obligations — the dividing line between which is a fine one —should be implemented reasonably and proportionately in accordance with the needs of the time and place’ (ibid. [10], at p. 394 {209}).

Are terrorist organizations and their members combatants for the purpose of their rights in the armed conflict? Are they civilians who take part directly in the armed conflict? Or are they perhaps neither combatants nor civilians? What, then, is the status of these terrorists?

B.    Combatants

24. Who are combatants? This category naturally includes the armed forces. It also includes persons who satisfy the following conditions (art. 1 of the Regulations appended to the Fourth Hague Convention of 1907):

‘The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

…’

This wording is repeated in art. 13 of the First and Second Geneva Conventions, and art. 4 of the Third Geneva Convention (cf. also art. 43 of the First Protocol). These conditions, together with additional conditions that are derived from the relevant conventions, have been examined in legal literature (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 39). We do not need to consider all of these, because the terrorist organizations from the territories and their individual members do not satisfy the conditions of combatants (see Gross, Democracy’s Struggle Against Terrorism: Legal and Moral Aspects, at p. 75). It is sufficient it we point out that they do not have a fixed recognizable mark that makes it possible to distinguish them from afar and they do not conduct their activities in accordance with the laws and customs of war. In one case I said:

‘The Lebanese detainees should not be regarded as prisoners of war. It is sufficient that they do not satisfy the provisions of art. 41(2)(d) of the Third Geneva Convention, which provides that one of the conditions that must be satisfied in order to fulfil the definition of “prisoner of war” is “that of conducting their operations in accordance with the laws and customs of war.” The organizations to which the detainees belonged are terrorist organizations that operate contrary to the laws and customs of war. Thus, for example, these organizations deliberately attack civilians and shoot from amongst a civilian population, which they use as a shield. All of these are acts that are contrary to international law. Indeed, Israel’s consistent position over the years has been to refuse to regard the various organizations, such as Hezbollah, as organizations to which the Third Geneva Convention applies. We have found no reason to intervene in this position’ (HCJ 2967/00 Arad v. Knesset [26], at p. 191; see also SFC 1158/02 (TA) State of Israel v. Barghouti [60], at para. 35); Military Prosecutor v. Kassem [61]).

25. The terrorists and their organizations, against which the State of Israel is conducting an armed conflict of an international character, are not included in the category of combatants. They do not belong to the armed forces nor are they included among the units that are given a status similar to that of combatants by customary international law. Indeed, the terrorists and the organizations that send them are unlawful combatants. They do not enjoy the status of prisoners of war. It is permitted to bring them to trial for their participation in the hostilities, to try them and sentence them. This was discussed by Chief Justice Stone of the United States Supreme Court, who said:

‘By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful population of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatant are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful’ (Ex Parte Quirin [63], at p. 30; see also Hamdi v. Rumsfeld [64]).

The Internment of Unlawful Combatants, 5762-2002, authorizes the chief of staff to issue an order for the administrative detention of an ‘unlawful combatant.’ This concept is defined in s. 2 of the law as —

‘A person who took part in hostilities against the State of Israel, whether directly or indirectly, or who is a member of a force carrying out hostilities against the State of Israel, and who does not satisfy the conditions granting a prisoner of war status under international humanitarian law, as set out in article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War.’

It need not be said that unlawful combatants are not outside the law. They are not outlaws. They too were created by God in His image; even their human dignity should be respected; they too enjoy and are entitled to the protection of customary international law, no matter how minimal this may be (see G.L. Neuman, ‘Humanitarian Law and Counterterrorist Force,’ 14 Eur. J. Int’l L. 283 (2003); G. Nolte, ‘Preventive Use of Force And Preventive Killings: Moves Into a Different Legal Order,’ 5 Theoretical Inquiries in Law 111 (2004), at p. 119). This is certainly the case when they are interned or when they are brought to trial (see art. 75 of the First Protocol, which reflects customary international law, and K. Dörmann, ‘The Legal Situation of “Unlawful / Unprivileged Combatants”,’ 85 IRRC 45 (2003), at p. 70). Does it follow from this that within the framework of Israel’s war against the terrorist organizations, Israel is not entitled to target them nor is it entitled to kill them even if they are planning, ordering or committing terrorist attacks? Were we to regard them as (lawful) combatants, the answer of course would be that Israel would be entitled to target them. Just as it is permitted to target a soldier of an enemy state, so too it would be permitted to target them. At the same time, they would enjoy the status of prisoners of war and the other protections given to lawful combatants. But, as we have seen, the terrorists operating against Israel are not combatants according to the definition of this expression in international law; they are not entitled to a status of prisoners of war; it is permitted to bring them to trial for their membership of terrorist organizations and for their actions against the army. Do they have the status of civilians? We will now turn to examine this question.

C.    Civilians

26. Customary international law relating to armed conflicts protects ‘civilians’ from attacks against them as a result of the hostilities. This was discussed by the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons, supra, where it said:

‘States must never make civilians the object of attack’ (p. 257).

This customary principle was given expression in art. 51(2) of the First Protocol, according to which:

‘The civilian population as such, as well as individual civilians, shall not be the object of attack.’

This also gives rise to the duty to do everything to minimize the collateral damage to the civilian population when carrying out attacks on ‘combatants’ (see E. Benvenisti, ‘Human Dignity in Combat: The Duty To Spare Enemy Civilians,’ 39 Isr. L. Rev. 81 (2006)). This protection that is given to ‘civilians’ gives rise to the question of who is a ‘civilian’ for the purpose of this rule. The approach of customary international law is that ‘civilians’ are persons who are not ‘combatants’ (see art. 50(1) of the First Protocol and Sabel, International Law, supra, at p. 432). In Prosecutor v. Blaškić [74] the International Criminal Tribunal for the former Yugoslavia said that civilians are:

‘Persons who are not, or no longer, members of the armed forces’ (Prosecutor v. Blaškić [74], at para. 180).

This definition is of a ‘negative’ character. It determines the concept of ‘civilians’ as the opposite of ‘combatants.’ Thus it regards unlawful combatants — who, as we have seen, are not ‘combatants’ — as civilians. Does this mean that the unlawful combatants are entitled to the same protection to which civilians who are not unlawful combatants are entitled? The answer is no. Customary international law relating to armed conflicts provides that a civilian who takes a direct part in the hostilities does not at the same time enjoy the protection given to a civilian who is not taking a direct part in those acts (see art. 51(3) of the First Protocol). Thus we see that the unlawful combatant is not a combatant but a ‘civilian.’ Notwithstanding, he is a civilian who is not protected against being targeted as long as he is taking a direct part in the hostilities. Indeed, the fact that a person is an ‘unlawful combatant’ is not merely a matter for national-internal criminal law. It is a matter for international law relating to international armed conflicts (see Jinks, ‘September 11 and the Law of War,’ supra). An expression of this is that civilians who are unlawful combatants are a legitimate target for attack, and therefore they do not enjoy the rights of civilians who are not unlawful combatants, provided that they are at that time taking a direct part in the hostilities. As we have seen, they also do not enjoy the rights given to combatants. Thus, for example, the laws relating to prisoners of war do not apply to them.

D.    Is there a third category of unlawful combatants?

27. In its written and oral pleadings before us, the state requested that we recognize the existence of a third category of persons, namely the category of unlawful combatants. These are people who play an active and continuing part in an armed conflict, and therefore their status is the same as that of combatants in the sense that they constitute a legitimate target for attack and they are not entitled to the protections given to civilians. Notwithstanding, they are not entitled to all the rights and protections given to combatants, since they do not distinguish themselves from civilians and they do not observe the laws of war. Thus, for example, they are not entitled to the status of prisoners of war. The state’s position is that the terrorists who participate in the armed conflict between Israel and the terrorist organizations fall into this category of unlawful combatants.

28. The literature on this subject is extensive (see R.R Baxter, ‘So-Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs,’ 28 Brit. Y. B. Int’l. L. 323 (1951); K. Watkin, Warriors Without Rights? Combatants, Unprivileged Belligerents, and Struggle Over Legitimacy, Harvard Program on Humanitarian Policy and Conflict Research, ‘Occasional Paper’ (Winter 2005, no. 2); J. Callen, ‘Unlawful Combatants and the Geneva Conventions,’ 44 Va. J. Int’l L. 1025 (2004); M.H. Hoffman, ‘Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A Distinction With Implications for the Future of International Humanitarian Law,’ 34 Case W. Res. J. Int’l L. 227 (2002); S. Zachary, ‘Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?’ 38 Isr. L. Rev. 378 (2005); Nolte, ‘Preventive Use of Force and Preventive Killings: Moves Into a Different Legal Order,’ supra; Dörmann, ‘The Legal Situation of “Unlawful / Unprivileged Combatants”,’ supra). We will not adopt a position on the question whether this third category should be recognized. The question before us is not a question of what the law should be but of what the law is. In our opinion, in so far as the law as it actually stands is concerned, we do not have before us sufficient information that allows us to recognize the existence of this third category on the basis of the existing position of international law, whether conventional or customary (see Cassese, International Law, supra, at pp. 408, 470). It is hard for us to see how it is possible to recognize a third category within the framework of interpreting the Hague and Geneva Conventions. We do not think that we have been presented with sufficient information that allows us to say that this third category has been recognized, as of the present, in customary international law. Notwithstanding, a new reality sometimes requires a new interpretation. Rules that were developed against the background of a reality that has changed should be given a dynamic interpretation that will adapt them, within the framework of the accepted rules of interpretation, to the new reality (see Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 800; Ajuri v. IDF Commander in West Bank [9], at p. 381 {116}). In this interpretive spirit we shall now address the rules of customary international law that consider the status of civilians who are also unlawful combatants.

(6) The status of civilians who are unlawful combatants

A.    The basic principle: civilians who take a direct part in hostilities are not protected at that time

29. Civilians enjoy comprehensive protection of their lives, bodies, liberty and property. ‘… the safety of the lives of the civilian population is a central value in the humanitarian laws…’ (Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [25], at para. 23 of my opinion). ‘…the right to life and physical integrity is the most basic right that lies at the heart of the humanitarian laws that are intended to protect the local population…’ (per Justice D. Beinisch in HCJ 9593/04 Morar v. IDF Commander in Judaea and Samaria [27], at para. 14 of her opinion). As opposed to combatants, who may be targeted because they are combatants, civilians may not be targeted precisely because they are civilians. A provision in this vein is stipulated in art. 51(2) of the First Protocol, which constitutes customary international law:

‘The civilian population as such, as well as individual civilians, shall not be the object of attack…’.

In a similar vein, art. 8(2)(b)(i)-(ii) of the Rome Statute of the International Criminal Court provides, in its definition of war crimes, that if an order is given intentionally to direct attacks against civilians, it is a war crime. This crime is applicable to those civilians who are ‘not taking a direct part in hostilities.’ Similarly civilians may not be attacked indiscriminately, i.e., an attack that, inter alia, is not directed at a specific military target (see art. 51(4) of the First Protocol, which constitutes customary international law: see Henckaerts and Doswald-Beck, Customary International Humanitarian Law, supra, at p. 37). This protection is given to all civilians, except for those civilians who are taking a direct part in hostilities. Indeed, the protection against attack is not granted to unlawful combatants, who take a direct part in the hostilities. I discussed this in one case, where I said:

‘Indeed, the military operations are directed against terrorists and persons carrying out hostile acts of terror. They are not directed against the local inhabitants’ (Physicians for Human Rights v. IDF Commander in Gaza [10], at p. 394 {209}).

What is the source of this basic principle, according to which the protection of international humanitarian law is removed from someone who is currently taking a direct part in hostilities, and what is the scope of its application?

B.    The source of the basic principle and its customary status

30. The basic principle is that civilians who take a direct part in hostilities are not protected at that time from being targeted. This principle is expressed in art. 51(3) of the First Protocol, which provides:

‘Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.’

It is well known that Israel is not a party to the First Protocol. Therefore it has not been adopted in Israeli legislation. Does this basic principle reflect customary international law? The position of the Red Cross is that this is indeed a principle of customary international law (see Henckaerts and Doswald-Beck, Customary International Humanitarian Law, supra, at p. 20. We accept this position. It is consistent with the provisions of common article 3 of the Geneva Conventions, to which Israeli is a party and which everyone agrees reflect customary international law, according to which protection is given to —

‘Persons taking no active part in the hostilities…’

The International Criminal Tribunal for the former Yugoslavia has held that article 51 of the First Protocol constitutes customary international law (Prosecutor v. Strugar [75], at para. 220). The military manuals of many countries, including Great Britain, France, the Netherlands, Australia, Italy, Canada, Germany, the United States (the air force) and New Zealand have copied this provision exactly or adopted its principles whereby civilians should not be targeted unless they are taking a (direct) part in the hostilities. Legal literature regards this provision as an expression of customary international law (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 11; Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ supra, at p. 192; Ben-Naftali and Michaeli, ‘ “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings,’ supra, at p. 269; Cassese, International Law, supra, at p. 416; M. Roscini, ‘Targeting and Contemporary Aerial Bombardment,’ 54 Int’l and Comp. L. Q. 411 (2005), at p. 418; V-J. Proulx, ‘If the Hat Fits Wear It, If the Turban Fits Run for Your Life: Reflection on the Indefinite Detention and Targeted Killings of Suspected Terrorists,’ 56 Hastings L.J. 801 (2005), at p. 879; G.H. Aldrich, ‘The Laws of War on Land,’ 94 Am. J. Int’l L. 42 (2000), at p. 53). Counsel for the respondents pointed out to us that in the opinion of the State of Israel, not all of the provisions of art. 51(3) of the First Protocol reflect customary international law. According to the state’s position, ‘all that customary international law provides is that it is prohibited to target civilians in general and also that it is permitted to target a civilian “who is taking a direct part in hostilities.” There is no restriction on the period of time when such an attack is permitted’ (supplementary closing arguments of the State Attorney’s Office of 26 January 2004, at p. 79). It follows that according to the state’s position the non-customary part of art. 51(3) of the First Protocol is that part that provides that civilians do not enjoy protection against being targeted ‘for such time’ as they are taking a direct part in the hostilities. As we have said, our position is that all the parts of art. 51(3) of the First Protocol reflect customary international law. What, then, is the scope of this provision? We shall now turn to this question.

C.    The nature of the basic principle

31. The basic principle is therefore this: a civilian — namely someone who does not fall within the definition of combatants — should refrain from participating directly in hostilities (see Fleck, The Handbook of Humanitarian Law in Armed Conflicts, at p. 210). A civilian who breaches this rule and who carried out hostilities does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not at that time enjoy the protection given to a civilian. He is subject to the risks of an attack just like a combatant, but without enjoying the rights of a combatant, such as those given to him as a prisoner of war. Admittedly, his status is that of a civilian and he does not lose this status when he participates directly in carrying out hostilities. But he is a civilian who is carrying out the function of a combatant. As long as he is acting to realize this function, he is subject to the risks that this function entails and ceases to enjoy the protection given to a civilian against being attacked (see K. Watkin, ‘Controlling The Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,’ 98 Am. J. Int’l L. 1 (2004)). This was discussed by H-P. Gasser in The Handbook of Humanitarian Law in Armed Conflicts, where he said:

‘What are the consequences if civilians do engage in combat? … Such persons do not lose their legal status as civilians… However, for factual reasons they may not be able to claim the protection guaranteed to civilians, since anyone performing hostile acts may also be opposed, but in the case of civilians, only for so long as they take part directly in hostilities’ (at p. 211, para. 501).

In a similar vein, the manual of the Red Cross states:

‘Civilians are not permitted to take direct part in hostilities and are immune from attack. If they take a direct part in hostilities they forfeit this immunity’ (Model Manual on the Law of Armed Conflict for Armed Forces, at para. 610, p. 34 (1999)).

This is the law with regard to the unlawful combatant. As long as he retains his status as a civilian — i.e., he does not become a part of the military forces — but he carries out combat activities, he ceases to enjoy the protection given to the civilian, and he is subject to the risks of being attacked like a combatant without enjoying the rights of the combatant as a prisoner of war. Indeed, guerrillas and terrorists who carry out hostilities are not entitled to the protection given to civilians. Admittedly, terrorists who carry out hostilities do not cease to be civilians, but by their actions they have deprived themselves of the benefit of being civilians that grants them protection from military attack. They also do not enjoy the rights of combatants, such as the status of prisoners of war.

32. We have seen that the basic principle is that the civilian population and individual civilians are protected against the dangers of military activity and are not a target for an attack. This protection is given to civilians ‘unless and for such time as they take a direct part in hostilities.’ (art. 51(3) of the First Protocol). This provision is made up of three main parts. The first part concerns the requirement that the civilians take part in hostilities; the second part concerns the requirement that the civilians take a ‘direct’ part in the hostilities; the third part concerns the provision that civilians are not protected against being attacked ‘for such time’ as they are taking a direct part in the hostilities. Let us discuss each of these parts separately.

D.    First part: ‘take a… part in hostilities’

33. Civilians lose the protection of customary international law concerning hostilities of an international character if they ‘take a… part in hostilities.’ What is the meaning of this provision? The accepted view is that ‘hostilities’ are all those acts that by their nature and purpose are intended to cause harm to armed forces. The Commentary on the Additional Protocols that was published in 1987 by the Red Cross states:

‘Hostile acts should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces’ (Y. Sandoz et al., Commentary on the Additional Protocols (1987), at p. 618).

A similar approach was adopted by the Inter-American Commission on Human Rights which is cited with approval by Henckaerts and Doswald-Beck (Customary International Humanitarian Law, supra, at p. 22). It would appear that to this definition we should add those acts that by their nature and purpose are intended to cause harm to civilians. According to the accepted definition, a civilian takes part in hostilities when he uses weapons within the framework of the armed conflict, when he collects intelligence for this purpose or when he prepares himself for the hostilities. With regard to taking part in the hostilities, there is no requirement that the civilian actually uses the weapons that he has, nor is it a requirement that he carries weapons on him (openly or concealed). It is possible to take a part in hostilities without using weapons at all. This was discussed by the Commentary on the Additional Protocols as follows:

‘It seems that the word “hostilities” covers not only the time that the civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon’ (at pp. 618-619).

As we have seen, this approach is not limited solely to ‘hostilities’ against the armed forces of a state. It applies also to hostilities against the civilian population of the state (see Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ supra, at p. 192).

E.    Second part: ‘take a direct part’

34. Civilians lose their protection against the attack of armed forces that is given to them under customary international law relating to international armed conflicts ((as adopted in art. 51(3) of the First Protocol) if ‘they take a direct part in hostilities.’ The provision therefore distinguishes between civilians who are taking a direct part in hostilities (who lose the protection from attack) and civilians who take an indirect part in the hostilities (who continue to enjoy protection from attack). What is this distinction? A similar provision appears in common article 3 of the Geneva Conventions, which adopts the expression ‘active part in hostilities.’ A judgment of the International Criminal Tribunal for Rwanda held that these two expressions have the same content (see Prosecutor v. Akayesu [691]). What is this content? It would appear that it is accepted in international literature that there is no agreed definition of the word ‘direct’ in the context before us (see Direct Participation in Hostilities under International Humanitarian Law, Report Prepared by the International Committee of the Red Cross (2003); Direct Participation in Hostilities under International Humanitarian Law (2004)). Henckaerts and Doswald-Beck (Customary International Humanitarian Law, supra, at p. 23) rightly said:

‘It is fair to conclude… that a clear and uniform definition of direct participation in hostilities has not been developed in state practice.’

In such circumstances, and in the absence of a complete and agreed customary criterion, there is no alternative to judging each case on its own merits, while limiting the scope of the dispute (cf. Prosecutor v. Tadić [73]). In this regard we should mention the following remarks in the Commentary of the Red Cross:

‘Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly’ (ibid., at p. 516).

Indeed, a civilian who bears arms (openly or concealed) and is on his way to the place where he will use them against the armed forces, or who is at the place of shooting itself, or who is on his way back from the place of shooting is a civilian who is taking a ‘direct part’ in the hostilities (see Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,’ supra, at p. 17). By contrast, a civilian who supports the hostilities against the armed forces in a general manner does not take a direct part in the hostilities (see Duffy, The ‘War on Terror’ and the Framework of International Law, supra, at p. 230). Similarly, a civilian who sells food or medicines to unlawful combatants also is taking a merely indirect part in the hostilities. This was discussed in the third report of the Inter-American Commission on Human Rights:

‘Civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. This is because indirect participation, such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties, does not involve acts of violence which pose an immediate threat of actual harm to the adverse party’ (IACHR, Third Report on Human Rights in Columbia, at paras. 53, 56 (1999)).

What is the law with regard to the area between these two extremes? On the one hand, the desire to protect innocent civilians leads in difficult cases to give a narrow interpretation to the expression ‘taking a direct part in hostilities.’ Prof. Cassese states:

‘The rationale behind the prohibition against targeting a civilian who does not take a direct part in hostilities, despite his possible (previous or future) involvement in fighting, is linked to the need to avoid killing innocent civilians’ (Cassese, International Law, supra, at p. 421; emphasis in the original).

On the other hand, it is possible to say that the desire to protect combatants and the desire to protect innocent citizens leads in difficult cases to giving a broad interpretation of the ‘direct’ character of the hostilities, since thereby civilians are encouraged to distance themselves from the hostilities as much as possible. As Prof. Schmitt says:

‘Gray areas should be interpreted liberally, i.e., in favor of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distant from the conflict as possible — in doing so they can better avoid being charged with participation in the conflict and are less liable to being directly targeted’ (M.N. Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict,’ in H. Fischerr (ed.), Crisis Management and Humanitarian Protection: Festshrift Fur Dieter Fleck, 505 (2004), at p. 509).

35. Against the background of these considerations, the following cases should be included within the scope of taking a ‘direct part’ in hostilities: someone who collects information about the armed forces, whether in the spheres in which the hostilities are being carried out (see W. Hays Parks, ‘Air War and the Law of War,’ 32 A. F. L. Rev. 1, 116 (1990)) or whether outside these spheres (see Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict,’ supra, at p. 511); someone who leads unlawful combatants to or from the place where the hostilities are being carried out; someone who operates weapons being used by unlawful combatants or who supervises their operation or provides service for them, whatever the distance from the battlefield may be. All of these are carrying out a function of combatants. The function determines the directness of the taking part in the hostilities (see Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,’ supra, at p. 17; Roscini, ‘Targeting and Contemporary Aerial Bombardment,’ supra). By contrast, someone who sells an unlawful combatant food products or medicines does not take a direct part, but merely an indirect one, in the hostilities. The same is true of someone who helps unlawful combatants with a general strategic analysis and grants them general logistic support, including financial support. The same is true of someone who disseminates propaganda that supports those unlawful combatants. If these persons are harmed, the state may not be liable for this if they fall within the scope of collateral or incidental damage. This was discussed by Gasser:

‘Civilians who directly carry out a hostile act against the adversary may be resisted by force. A civilian who kills or takes prisoners, destroys military equipment, or gathers information in the area of operations may be made the object of attack. The same applies to civilians who operate a weapons system, supervise such operation, or service such equipment. The transmission of information concerning targets directly intended for the use of a weapon is also considered as taking part in hostilities. Furthermore, the logistics of military operations are among the activities prohibited to civilians… not only direct and personal involvement but also preparation for a military operation and intention to take part therein may suspend the immunity of a civilian. All these activities, however, must be proved to be directly related to hostilities or, in other words to represent a direct threat to the enemy… However, the term should not be understood too broadly. Not every activity carried out within a state at war is a hostile act. Employment in the armaments industry for example, does not mean that civilian workers are necessarily participating in hostilities… Since, on the other hand, factories of this industry usually constitute lawful military objectives that may be attacked, the normal rules governing the assessment of possible collateral damage to civilians must be observed’ (Gasser, The Handbook of Humanitarian Law in Armed Conflicts, supra, at p. 232, paras. 517, 518).

In international literature there is a disagreement with regard to the following case: what is the law that applies to a civilian who drives a vehicle conveying ammunition? (see Parks, ‘Air War and the Law of War,’ supra, at p. 134; Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict,’ supra, at p. 507; A.P.V. Rogers, Law on The Battlefield (1996), at p. 8; L.L. Turner and L.G. Norton, ‘Civilians At The Tip of the Spear,’ 51 Air Force L. Rev. 1 (2001); J.R. Heaton, ‘Civilians at War: Re-Examining The Status of Civilians Accompanying The Armed Forces,’ 57 Air Force L. Rev. 171 (2005)). Some authorities hold that he is taking a direct part in the hostilities (and therefore he may be attacked), while others hold that he is not taking a direct part in the hostilities (and therefore he may not be attacked). The two opinions hold that the ammunition in the vehicle may be attacked. The disagreement is whether the civilian driver may be attacked. Those who believe he is taking a direct part in the hostilities hold that he may be attacked. Those who believe that he is not taking a direct part in the hostilities hold that he may not be attacked, but if he is harmed it is a case of collateral damage caused to a civilian who is in the vicinity of a military objective that may be attacked. In our opinion, if the civilian driver is taking the ammunition to the place where it will be used to carry out hostilities, he should be regarded as taking a direct part in the hostilities (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 27; Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict,’ supra, at p. 509; Rogers, Law on the Battlefield, at p. 7; A.P.V. Rogers and P. Malherbe, Model Manual of the Law of Armed Conflict (ICRC, 1999), at p. 29).

36. What is the law with regard to civilians who act as a human shield for terrorists who are taking a direct part in the hostilities? Certainly if they are acting in this way because they were compelled to do so, these innocent civilians should not be regarded as taking a direct part in the hostilities. They are themselves the victims of terrorism. But if they are acting in this way voluntarily because of their support for a terrorist organization, they should be regarded as persons who are taking a direct part in the hostilities (see Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict,’ supra, at p. 521, and M.N. Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,’ 5 Ch. J. Int’l Law 511 (2004), at p. 541).

37. We have seen that a civilian who attacks armed forces is taking a ‘direct part’ in the hostilities. What is the law regarding the persons who recruit him to take a direct part in the hostilities and the persons who send him to carry out hostilities? Is there a difference between his direct commanders and those who are more senior to them? Is it only the last terrorist in the chain of command who is responsible for taking a ‘direct’ part in the hostilities or is the whole chain of command responsible? In our opinion, the ‘direct’ character of taking part in the hostilities should not be limited only to someone who carries out the physical attack. Someone who sends him to carry out the attack also takes a ‘direct’ part. The same is true of someone who decides upon the actual attack, or who plans it. It cannot be said that all of these only take an indirect part in the hostilities. Their participation is direct (and active) (see Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict,’ supra, at p. 529).

F.     Third part: ‘for such time’

38. Article 51(3) of the First Protocol provides that civilians enjoy protection against the dangers arising from military operations and may not be a target for attacks unless ‘and for such time’ as they take a direct part in hostilities. The provisions of art. 51(3) of the First Protocol introduce a requirement of time. A civilian who takes part in hostilities loses the protection from being attacked ‘for such time’ as he is taking a part in those hostilities. When this time has passed, the protection afforded to the civilian is restored. In the respondents’ opinion, this part of art. 51(3) of the First Protocol does not reflect customary international law, and the State of Israel is not obliged to act accordingly. We cannot accept this approach. As we have seen, all of the parts of art. 51(3) of the First Protocol reflect customary international law, including the requirement concerning time. The key question concerns the interpretation of this provisions and its scope of application.

39. Just as there is no consensus in international literature with regard to the scope of the expression ‘take a direct part in hostilities,’ there is also no consensus with regard to the scope of the expression ‘for such time.’ Indeed, these two concepts are closely related. But they are not identical. In the absence of a consensus as to the interpretation of the expression ‘for such time,’ there is no alternative to taking each case as it comes. Once again it is helpful to consider the extreme cases. At one extreme, a civilian who takes a direct part in hostilities on a single occasion or sporadically, and thereafter severs his connection with this activity, is a civilian who, when he severs his connection with the activity, is entitled to protection from an attack. He should not be attacked because of the hostilities that he carried out in the past. At the other extreme, a civilian who joins a terrorist organization that becomes his home, and within the framework of his position in that organization he carries out a series of hostilities, with short interruptions between them for resting, loses his immunity against being attacked ‘for such time’ as he is carrying out the series of operations. Indeed, for such a civilian the rest between hostilities is nothing more than preparation for the next hostile act (see D. Statman, ‘Targeted Killing,’ 5 Theoretical Inquiries in Law 179 (2004), at p. 195).

40. These examples indicate the dilemma presented by the requirement of ‘for such time.’ On the one hand, a civilian who takes a direct part in hostilities on a single occasion or sporadically, but has severed his connection with them (whether entirely or for a lengthy period), should not be attacked. On the other hand, we must avoid a phenomenon of the revolving door, whereby every terrorist may invoke sanctuary or claim refuge while he is resting and making preparations, so that he has protection from being attacked (see Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict,’ supra, at p. 536; Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,’ supra, at p. 12; Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ supra, at p. 193; Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 29; Parks, ‘Air War and the Law of War,’ supra, at p. 118). In the considerable distance between these two extremes lie the ‘grey’ areas, where customary international law has not yet been formulated. There is no alternative, therefore, to examining each case on its merits. In this regard the following four issues should be addressed: first, reliable information is required before the civilian is classified as falling into one of the cases that we have discussed. Innocent civilians should not be harmed (see Cassese, International Law, supra, at p. 421). Properly verified information should exist with regard to the identity and activity of the civilian who is claimed to be taking a direct part in the hostilities (see Ergi v. Turkey [68]. Cassese rightly says that:

‘… if a belligerent were allowed to fire at enemy civilians simply suspected of somehow planning or conspiring to plan military attacks, or of having planned or directed hostile actions, the basic foundations of international humanitarian law would be seriously undermined. The basic distinction between civilians and combatants would be called into question and the whole body of law relating to armed conflict would eventually be eroded’ (Cassese, International Law, at p. 421).

The burden of proof of the armed forces in this matter is a heavy one (see Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ supra, at p. 203; Gross, Democracy’s Struggle against Terrorism: Legal and Moral Aspects, at p. 606). In case of doubt, a careful examination is required before an attack is carried out. This was discussed by Henckaerts and Doswald-Beck:

‘… when there is a situation of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious’ (Customary International Humanitarian Law, supra, at p. 24).

Second, a civilian should not be attacked at a time that he is taking a direct part in hostilities if it is possible to act against him by means of a less harmful measure. In our internal law this rule is derived from the principle of proportionality. Indeed, of the possible military measures one should choose the measure whose violation of the victim’s human rights is the least. Therefore, if it is possible to arrest, interrogate and prosecute a terrorist who is taking a direct part in hostilities, these steps should be followed (see Mohamed Ali v. Public Prosecutor [66]). A trial is preferable to the use of force. A country governed by the rule of law resorts to the use of trials rather than the use of force. This question arose in McCann v. United Kingdom [69]. In that case, three terrorists from Northern Ireland who belonged to the I.R.A. were shot to death. They were shot in the streets of Gibraltar, where they were attacked by British agents. The European Court of Human Rights held that the United Kingdom unlawfully violated the victims’ right to life (art. 2 of the European Convention on Human Rights). The court held:

‘… the use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk’ (ibid. [69], at p. 148, para. 235).

Arrest, interrogation and trial are not measures that can always be adopted. Sometimes this possibility simply does not exist; sometimes it involves so great a risk to the lives of soldiers that there is no requirement to adopt it (see A. Dershowitz, Preemption: A Knife that Cuts Both Ways (2005), at p. 230). But it is a possibility that should always be considered. It is likely to be practical especially in conditions of a belligerent occupation where the army controls the territory where the operation is being carried out, and arrest, interrogation and trial are possibilities that can sometimes be carried out (see art. 5 of the Fourth Geneva Convention). Naturally, in a specific case this possibility may not exist. Sometimes it may cause greater harm to the lives of innocent civilians in the vicinity. In such a case, it should not be adopted. Third, after carrying out an attack on a civilian who is suspected of taking a direct part at that time in hostilities, a thorough investigation should be made (retrospectively) to ascertain that the identity of the target was correct and to verify the circumstances of the attack on him. This investigation should be an independent one (see Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,’ supra, at p. 23; Duffy, The ‘War on Terror’ and the Framework of International Law, supra, at p. 310; Cassese, International Law, supra, at p. 419; C. Warbrick, ‘The Principle of the European Convention on Human Rights and the Responses of States to Terrorism,’ (2002) E. H. R. L. R. 287, at p. 292; McCann v. United Kingdom [69], at pp. 161, 163; McKerr v. United Kingdom [70], at p. 559). In appropriate cases there will be grounds for considering the payment of compensation for harming an innocent civilian (see Cassese, International Law, supra, at pp. 419, 423; art. 3 of the Hague Regulations; art. 91 of the First Protocol). Finally, if the attack is not only on the civilian who is taking a direct part in the hostilities but also on innocent civilians who are in the vicinity, the harm to them is collateral damage. This harm should satisfy the test of proportionality. Let us now turn to examine this question.

(7) Proportionality

A.    The principle of proportionality and its application in customary international law

41. The principle of proportionality is a general principle in the law. It is a part of our legal approach to human rights (see s. 8 of the Basic Law: Human Dignity and Liberty; see also A. Barak, A Judge in a Democracy (2004), at p. 346). It is an important element in customary international law (see R. Higgins, Problems and Process – International Law and How We Use It (1994), at p. 219; J. Delbruck, ‘Proportionality,’ in R. Bernhardt (ed.), Encyclopedia of Public International Law (1997), at p. 1144). It is an integral part of the law of self-defence. It is a major element in the protection of civilians in situations of armed conflicts (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 119; Gasser, The Handbook of Humanitarian Law in Armed Conflicts, supra, at p. 220; Cassese, International Law, supra, at p. 418; Ben-Naftali and Shani, ‘ “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings,’ supra, at p. 154; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, supra, at p. 60; J.G. Gardam, ‘Proportionality and Force in International Law,’ 87 Am. J. Int’l L. 391 (1993); J.S. Pictet, Development and Principles of International Humanitarian Law (1985), at p. 62; W.J. Fenrick, ‘The Rule of Proportionality and Protocol I in Conventional Warfare,’ 98 Mil. L. Rev. 91 (1982); T. Meron, Human Rights and Humanitarian Norms as Customary International Law (1989), at p. 74). It has a central role in the law of belligerent occupations (see Hass v. IDF Commander in West Bank [20], at p. 461 {71}; Bethlehem Municipality v. State of Israel [24]; Beit Sourik Village Council v. Government of Israel [17], at p. 836 {309-310}; HCJ 1661/05 Gaza Coast Local Council v. Knesset [28], at para. 102 of the majority opinion; Marabeh v. Prime Minister of Israel [8], at para. 30 of my opinion; see also Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 119; Henckaerts and Doswald-Beck, Customary International Humanitarian Law, supra, at p. 60). In a whole host of cases the Supreme Court has examined the authority of the military commander in the territories according to the criterion of proportionality. It has done so, inter alia, with regard to assigning residence (Ajuri v. IDF Commander in West Bank [9]); surrounding towns and erecting road blocks on access routes to and from them for the purposes of fighting terrorism (see HCJ 2847/03 Alauna v. IDF Commander in Judaea and Samaria [29]); damage to the property of protected inhabitants as a result of army operations (see HCJ 9252/00 El-Saka v. State of Israel [30]); upholding the rights to pray at holy sites and have access to them (Hass v. IDF Commander in West Bank [20]); demolishing houses for operational needs (HCJ 4219/02 Gussin v. IDF Commander in Gaza Strip [31]); imposing a blockade (Almadani v. Minister of Defence [6]); building the security fence (Beit Sourik Village Council v. Government of Israel [17]; Marabeh v. Prime Minister of Israel [8]).

B.    Proportionality in an international armed conflict

42. The principle of proportionality plays a major role in the international law of armed conflicts (cf. arts. 51(5)(b) and 57 of the First Protocol; see Henckaerts and Doswald-Beck, Customary International Humanitarian Law, supra, at p. 46; Ben-Naftali and Shani, ‘ “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings,’ supra, at p. 154). These laws are of a customary nature (see Henckaerts and Doswald-Beck, ibid., at p. 53; Duffy, The ‘War on Terror’ and the Framework of International Law, supra, at p. 235; Prosecutor v. Kupreškić [76]). The principle of proportionality arises when the military activity is directed against combatants and military targets, or against civilians for such time as they take a direct part in hostilities, and in the course of this civilians are also harmed. The rule is that the harm to innocent civilians that is caused as collateral loss in the course of the combat activities should be proportionate (see Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 119). Civilians are likely to be harmed because of their presence inside a military target, such as civilians who work in a military base; civilians are likely to be hurt when they live, work or pass close to military targets; sometimes because of an error civilians are harmed even if they are not close to military targets; sometimes civilians are used, by means of coercion, as a ‘human shield’ against an attack on a military target, and they are hurt as a result. In all of these situations and others similar to them, the rule is that the harm to innocent civilians should, inter alia, satisfy the principle of proportionality.

43. The principle of proportionality applies in every case where civilians who are not taking a direct part in hostilities at the time are harmed. This was discussed by Justice Higgins in Legality of the Threat or Use of Nuclear Weapons, supra:

‘The principle of proportionality, even if finding no specific mention, is reflected in many provisions of Additional Protocol I to the Geneva Conventions of 1949. Thus even a legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack’ (at p. 587).

An expression of this customary principle can be found in the First Protocol, according to which indiscriminate attacks are prohibited (art. 51(4). The First Protocol goes on to provide (in art. 51(5)):

‘5. Among others, the following types of attacks are to be considered as indiscriminate:

(a) …

(b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’

44. The requirement of proportionality in the law of armed conflicts focuses mainly on what in our constitutional law is called proportionality ‘in the narrow sense,’ i.e., the requirement that there is a proper proportionate correlation between the military objective and the civilian harm. Notwithstanding, the law of armed conflicts includes additional elements, which are also an integral part of the theoretical principle of proportionality in its broad sense. It would be proper to consider the possibility of concentrating all of these laws into one body of material, by formulating a comprehensive doctrine of proportionality, as has been done in the internal law of many countries. We cannot examine this matter within the framework of the petition before us. We will concentrate on the aspect of proportionality that is agreed by everyone to be relevant to our case.

Due proportion between the advantage and the damage

45. The test of proportionality stipulates that an attack on innocent civilians is not permitted if the collateral damage to them is not commensurate with the military advantage (in protecting combatants and civilians). In other words, the attack is proportionate if the advantage arising from achieving the proper military objective is commensurate with the damage caused by it to innocent civilians. This is an ethical test. It is based on a balance between conflicting values and interests (see Beit Sourik Village Council v. Government of Israel [17], at p. 850 {309-310}; HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [32], at para. 74 of my opinion). It is accepted in the national law of many countries. In Israel it constitutes a main normative test for examining government activity in general and army activity in particular. In one case I said:

‘This subtest is in essence a vehicle for the constitutional outlook that the end does not justify the means. It is an expression of the idea that there is an ethical barrier that democracy cannot pass, even if the purpose that we wish to realize is a proper one’ (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [33], at para. 30 of my opinion); see also R. Alexy, A Theory of Constitutional Rights (2002), at p. 66).

As we have seen, this requirement of proportionality is found in customary international law concerning the protection of civilians (see Cassese, International Law, supra, at p. 418; Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ supra, at p. 200; Ben-Naftali and Michaeli, ‘ “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings,’ supra, at p. 278; Gardam, ‘Proportionality and Force in International Law,’ supra; art. 51(4)(c) of the First Protocol, which constitutes customary law). When the damage to innocent civilians is disproportionate to the advantage of the attacking army, the attack is disproportionate and prohibited.

46. Proportionality in this sense is not required with regard to an attack on a combatant or a civilian who is at that time taking a direct part in the hostilities. Indeed, a civilian who is taking part in hostilities endangers his life and he may, like a combatant, constitute a target for an attack that causes death. This is a permitted killing. By contrast, proportionality is required in any case where an innocent civilian is hurt. Therefore the requirements of proportionality in the narrow sense should be satisfied in a case where the attack on a terrorist causes collateral damage to innocent civilians in the vicinity. The rule of proportionality applies to the attack on these innocent civilians (see art. 51(5)b) of the First Protocol). The rule is that combatants or terrorists may not be attacked if the expected damage to innocent civilians in their vicinity is excessive in relation to the military benefit of attacking them (see Henckaerts and Doswald-Beck, Customary International Humanitarian Law, supra, at p. 49). Making this balance is difficult. Here too we need to proceed on a case by case basis, while limiting the area of the dispute. Take an ordinary case of a combatant or terrorist sniper who is shooting at soldiers or civilians from the balcony of his home. Shooting at him will be proportionate even if as a result an innocent civilian who lives next to him or who passes innocently next to his home is hurt. This is not the case if the house is bombed from the air and dozens of residents and passers-by are hurt (cf. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, at p. 123; Gross, Democracy’s Struggle Against Terrorism: Legal and Moral Aspects, at p. 621). The difficult cases are those that lie in the area between the extreme examples. Here a careful examination of each case is required; the military advantage should be concrete and direct (see art. 57(2)(a)(iii) of the First Protocol). Indeed, in international law just as in internal law, the end does not justify the means. The power of the state is not unlimited. Not all the means are permitted. This was discussed by the Inter-American Court of Human Rights, which said:

‘… regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the state is not unlimited, nor may the state resort to any means to attain its ends’ (Velásquez-Rodríguez v. Honduras [71], at para. 154).

Notwithstanding, when there are hostilities, there are losses. A balance should be struck between the duty of the state to protect the lives of its soldiers and civilians and its duty to protect the lives of innocent civilians who are harmed when targeting terrorists. This balance is a difficult one, because it concerns human life. It gives rise to moral and ethical problems (see A. Kasher and A. Yadlin, ‘Assassination and Preventive Killing,’ 25 SAIS Rev. 41 (2005)). But despite the difficulty, the balance must be struck.

8.    Justiciability

47. A large part of the initial reply of the State Attorney’s Office (of 20 March 2002) was devoted to a preliminary argument. According to this, ‘the combat activities of the IDF that are carried out within the framework of the combat activities taking place in the territories, which are of a purely operational character, are not justiciable — or at least are not institutionally justiciable — and this honourable court will not consider them’ (para. 26, p. 7; emphasis in the original). In explaining this position, counsel for the respondents emphasized that in his opinion ‘the predominant character of the matter is not legal and judicial restraint requires the court neither to enter the battlefield nor to consider the purely operational activities taking place on the battlefield’ (ibid, at para. 36, p. 11; emphasis in the original). Counsel for the respondents emphasized that:

‘It is obvious that the fact that a matter is “not justiciable” does not mean that no supervision or control is exercised on the part of the executive authority itself… The army authorities have been instructed by the attorney-general and the Chief Military Attorney to act in this area, as in others, solely in accordance with the provisions of international law that apply to the laws of war, and this instruction is observed by them’ (ibid., para. 40, p. 13).

48. It is well known that we distinguish between a claim of no normative justiciability and a claim of no institutional justiciability (see HCJ 910/86 Ressler v. Minister of Defence [34]). A claim of no normative justiciability proposes that there are no legal criteria for deciding a dispute that is before the court. A claim of no institutional justiciability proposes that it is not fitting that a dispute should be decided according to the law by the court. The claim of no normative justiciability has no legal basis, either in general or in the case before us. A claim of no normative justiciability has no legal basis in general because there is always a legal norm according to which a dispute may be decided, and the existence of a legal norm gives rise to the existence of legal criteria for it. Sometimes it is easy to recognize the norm and the criteria inherent in it and at other times it is difficult to do so. But ultimately a legal norm will always be found and legal criteria will always exist. This norm may be a general one, such as the norm that a person may do anything except what he has been prohibited from doing, and the government may do only what it has been permitted to do. Sometimes the norm is far more limited. Such is the position in our case. There are legal norms that address the question before us, and from these it is possible to derive criteria that determine what is permitted and what is prohibited. There is therefore no basis to the claim of a lack of normative justiciability.

49. The second type of non-justiciability concerns a lack of institutional justiciability. This non-justiciability concerns the question —

‘… whether the law and the court are the proper framework for deciding a dispute. The question is not whether it is possible to decide a dispute according to the law and in the court. The answer to this question is yes. The question is whether it is desirable to decide a dispute — which is normatively justiciable — according to legal criteria in the court’ (Ressler v. Minister of Defence [34], at p. 489 {73}).

This type of non-justiciability is recognized in our legal system. Thus, for example, it has been held that as a rule questions of the day-to-day running of the affairs of the Knesset are not institutionally justiciable (see HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [35], at p. 812; HCJ 9056/00 Kleiner v. Knesset Speaker [36], at p. 708). Only if it is alleged that a breach of the rules concerning the internal proceedings undermines the fabric of parliamentary life and the foundations of the structure of our constitutional system will there be a basis for considering the claim in the court (see HCJ 652/81 Sarid v. Knesset Speaker [37]; HCJ 73/85 Kach Faction v. Knesset Speaker [38]; HCJ 742/84 Kahane v. Knesset Speaker [39]).

50. The scope of the doctrine of institutional non-justiciability in Israel is not extensive. There is no consensus with regard to its limits. My personal opinion is that it should only be recognized within very narrow limits (see Barak, A Judge in a Democracy, at p.275). Whatever the position is, the doctrine has no application in the petition before us, for four reasons: first, in the case law of the Supreme Court there is a clear policy that the doctrine of institutional non-justiciability does not apply where recognizing it would prevent an examination of a violation of human rights. This was discussed by Justice A. Witkon in HCJ 606/78 Awib v. Minister of Defence [40]. That case considered the legality of a settlement in the territories. It was argued by the state that the question of the legality of a settlement in the territories was non-justiciable. In rejecting this argument, Justice A. Witkon said:

‘I was not impressed by this argument at all… It is clear that in matters of foreign policy, like in several other matters, the decision is made by political authorities and not by the judiciary. But on the assumption… that a person’s property has been harmed or taken away from him unlawfully, it is difficult to believe that the court will refuse to hear that person because his right may be the subject of political negotiations’ (Awib v. Minister of Defence [40], at p. 124).

In HCJ 390/79 Dawikat v. Government of Israel [41] the question of the legality of a settlement in the territories was considered once again. Vice-President M. Landau said:

‘A military government that wishes to violate the property rights of the individual should show a legal basis for doing so, and it cannot avoid judicial scrutiny of its actions by claiming non-justiciability’ (Dawikat v. Government of Israel [41], at p. 15).

In Marabeh v. Prime Minister of Israel [8] the court considered the legality of the separation fence in accordance with the rules of customary international law. With regard to the justiciability of this question I said:

‘… the court is not prevented from exercising judicial scrutiny merely because the military commander acts outside Israel, and his actions have political and military ramifications. When the decisions or actions of the military commander violate human rights, they are justiciable. The doors of the court are open. The argument that the violation of human rights was the result of security considerations does not prevent the exercising of judicial scrutiny. ‘Security considerations’ and ‘military necessity’ are not magic words… This is required by the protection of human rights’ (ibid. [8], at para. 31 {p. 140}).

The petition before us seeks to determine what is permitted and what prohibited in military operations that may violate the most basic of human rights, the right to life. The doctrine of institutional non-justiciability cannot prevent an examination of this question.

51. Second, justices who think that there is a place for the doctrine of institutional non-justiciability point out that the test is one of the predominant nature of the question in dispute. When this is political or military, there are grounds for refusing to hear the case. By contrast, when the nature of the question is predominantly legal, the doctrine of institutional non-justiciability does not apply (see HCJ 4481/91 Bargil v. Government of Israel [42], at p. 218 {166}). The questions in dispute in the petition before us are not questions of policy. Nor are they military questions. The question is not whether or not to adopt a policy of a preventative attack that causes the death of terrorists and sometimes also of innocent civilians in the vicinity. The question is a legal one, which can be seen from an analysis of our judgment; the question concerns the legal classification of the military dispute taking place between Israel and the terrorists who come from the territories; the question concerns the existence or non-existence of customary international law on the matter addressed by the petition; the question concerns the determination of the scope of application of this customary law, in so far as it is reflected in the provisions of art. 51(d) of the First Protocol; the question concerns the rules of proportionality that apply in this matter. The answer to all of these questions is predominantly a legal one.

52. Indeed, in a whole host of judgments the Supreme Court has considered the rights of the inhabitants of the territories. Thousands of judgments have been given by the Supreme Court, which, in the absence of any other competent judicial instance, has addressed these issues. These issues have concerned the powers of the army during combat and the restrictions imposed on it under international humanitarian law. Thus, for example, we have considered the rights of the local population to food, medicines and other needs of the population during the combat activities (Physicians for Human Rights v. IDF Commander in Gaza [10]); we have considered the rights of the local population when terrorists are arrested (Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [25]); when transporting the injured (HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [43]; when besieging a church (Almadani v. Minister of Defence [6]); during arrest and interrogation (Centre for Defence of the Individual v. IDF Commander in West Bank [19]; Yassin v. Commander of Ketziot Military Camp [22]; Marab v. IDF Commander in Judaea and Samaria [23]). More than one hundred petitions have examined the rights of the local inhabitants under international humanitarian law as a result of the construction of the separation fence (see Beit Sourik Village Council v. Government of Israel [17]; Marabeh v. Prime Minister of Israel [8]; HCJ 5488/04 Al-Ram Local Council v. Government of Israel [44]). In all of these the predominant character of the question in dispute was legal. Admittedly, the legal answer is likely to have political and military ramifications. But they did not determine the nature of the question. It is not the results that arise from the judgment that determine its nature, but the questions that are considered by it and the way in which they are answered. These questions have in the past been, and they remain today, predominantly of a legal nature.

53. Third, the types of question that were considered by us are considered by international courts. The international law that concerns the duties of armed forces to civilians during an armed conflict has been considered, for example, by the International Criminal Tribunals for war crimes in Rwanda and the former Yugoslavia (see paras. 26, 30 and 34 above). These courts have examined the legal aspects of the conduct of armed forces. Why cannot an Israeli court examine these matters too? Why should these questions, which are justiciable in international courts, not be justiciable in national courts?

54. Finally, the laws concerning the preventative operations of armed forces that cause the death of terrorists and innocent civilians in their vicinity require a retrospective investigation of the conduct of the armed forces (see para. 40 above). Customary international law provides that this investigation should be of an independent character. In order to enhance its objective nature and ensure the maximum possible objectivity, this investigation should be subject to judicial scrutiny. This judicial scrutiny is not a substitute for the ongoing scrutiny of army authorities, which exercise their scrutiny prospectively. ‘Because of the court’s structure and the scope of its functions, it cannot operate by way of ongoing scrutiny and supervision’ (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [45], at p. 825). Moreover, this judicial scrutiny is not a substitute for an objective retrospective investigation after an event in which, it is alleged, innocent civilians who did not take a direct part in the hostilities were harmed. When a retrospective investigation has been made, judicial scrutiny of the decisions of the objective committee of investigation should be possible in appropriate cases. This will ensure that they function properly.

(9) The scope of judicial scrutiny

55. The Supreme Court, sitting as the High Court of Justice, exercises judicial scrutiny of the legality of the discretion of military commanders in the territories. This court has done this since the Six Day War. The premise that has guided the court was that the military commanders and officers who are subject to its authority are civil servants who carry out public duties according to the law (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [11], at p. 809). This scrutiny ensures the legality of the discretion exercised by the military commander.

56. The scope of judicial review on a decision of a military commander to carry out a preventative attack that causes the death of terrorists in the territories, and sometimes the death of innocent civilians, varies according to the nature of the concrete question that is under discussion. At one end of the spectrum lies the question, which we are considering in the petition before us, concerning the content of the international law of armed conflicts. This is simply a question of determining the applicable law. According to our legal approach, this question lies within the purview of the judiciary. ‘The final and decisive decision as to the interpretation of a statute, according to its validity at any given time, rests with the court’ (per President M. Shamgar in HCJ 306/81 Flatto-Sharon v. Knesset Committee [46], at p. 141). The task of interpreting the law rests with the court. This is the case with regard to the Basic Laws, statutes and regulations. This is the case with regard to Israeli common law. It is certainly also the case with regard to customary international law that applies in Israel. The court is not permitted to shirk this authority. The question that the court should ask itself is not whether the executive understood the law in a reasonable manner. The question that the court should ask itself is whether the executive understood the law correctly (HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [47], at p. 762). It is the court that has expertise in interpreting the law (see HCJ 3648/97 Stamka v. Minister of Interior [48], at p. 743; HCJ 399/85 Kahane v. Broadcasting Authority Management Board [49], at p. 305). It follows that the judicial scrutiny of the content of customary international law with regard to the question before us is comprehensive and complete. The court asks itself what the international law is and whether the military commander’s approach is consistent with that law.

57. At the other end of the spectrum of possibilities lies the professional-military decision to carry out a preventative operation which causes the death of terrorists in the territories. This is a decision that falls within the authority of the executive branch. It has the professional security expertise in this sphere. The court will ask itself whether a reasonable military commander would have made the decision that was actually made. The question is whether the decision of the military commander falls within the margin of reasonable activity of a military commander. If the answer is yes, the court will not replace the security discretion of the military commander with the security discretion of the court (see HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [50], at p. 539; Ajuri v. IDF Commander in West Bank [9], at p. 375 {109}). In Beit Sourik Village Council v. Government of Israel [17], which concerned the route of the security fence, we said:

‘We, the justices of the Supreme Court, are not experts in military matters. We shall not examine whether the military outlook of the military commander corresponds with ours, in so far as we have a military outlook concerning the military character of the route. This is how we act with regard to all questions of expertise, and this is how we act with regard to military matters as well. All we can determine is whether a reasonable military commander could have determined a route as the military commander determined it’ (ibid. [17], at p. 843 {300}).

It follows that judicial scrutiny with regard to military measures that should be taken is an ordinary scrutiny of reasonableness. It is true that ‘military considerations’ and ‘state security’ are not magic words that prevent judicial scrutiny. But the question is not what I would have decided in the given circumstances, but whether the decision that the military commander made is a decision that a reasonable military commander was entitled to make. In this regard special weight should be given to the military opinion of the person who has the responsibility for security (see HCJ 258/79 Amira v. Minister of Defence [51]; Dawikat v. Government of Israel [41], at p. 25; Beit Sourik Village Council v. Government of Israel [17], at p. 844 {300}; Marabeh v. Prime Minister of Israel [8], at para. 32 of the judgment).

58. Between these two ends of the spectrum there are cases that lie in the middle ground. Each of these requires a careful examination of the character of the decision. In so far as it involves a legal perspective, it will approach one end of the spectrum. In so far as it involves a professional military perspective, it will approach the other end of the spectrum of possibilities. Take the question whether a decision to carry out a preventative attack that causes the death of terrorists falls within the framework of the conditions determined by customary international law in this regard (as stated in art. 51(3) of the First Protocol). What is the scope of the judicial scrutiny of a decision of the military commander that these conditions are satisfied in a specific case? Our answer is that the question whether the conditions provided in customary international law for carrying out a military operation are satisfied is a legal question, with regard to which the court has the expertise. I discussed this in Physicians for Human Rights v. IDF Commander in Gaza [10]:

‘Judicial review does not examine the wisdom of the decision to carry out military operations. The issue addressed by judicial review is the legality of the military operations. Therefore we presume that the military operations carried out in Rafah are necessary from a military viewpoint. The question before us is whether these military operations satisfy the national and international criteria that determine the legality of these operations. The fact that operations are necessary from a military viewpoint does not mean that they are lawful from a legal viewpoint. Indeed, we do not replace the discretion of the military commander in so far as military considerations are concerned. That is his expertise. We examine their consequences from the viewpoint of humanitarian law. That is our expertise’ (ibid. [10], at p. 393 {207-208}).

A similar approach exists with regard to proportionality. The decision on a question whether the benefit that accrues from the preventative attack is commensurate with the collateral damage caused to innocent civilians who are harmed by it is a legal question, with regard to which it is the judiciary that have the expertise. I discussed this in Beit Sourik Village Council v. Government of Israel [17] with regard to the proportionality of the harm that the security fence causes to the local inhabitants’ quality of life:

‘The military commander is the expert on the military aspect of the route of the separation fence. We are experts on its humanitarian aspects. The military commander determines whether the separation fence will pass over the hills or in the plain. That is his expertise. We examine whether the harm caused by this route to the local inhabitants is proportional. That is our expertise’ (ibid. [17], at p. 846 {304}; Marabeh v. Prime Minister of Israel [8], at para. 32 of the judgment).

Proportionality is not a precise criterion. Sometimes there are several ways of satisfying its requirements. A margin of proportionality is created. The court is the guardian of its limits. The decision within the limits of the margin of proportionality rests with the executive branch. This is its margin of appreciation (see HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [52], at p. 12; HCJ 4769/95 Menahem v. Minister of Transport [53], at p. 280; Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [32], at para. 78 of my opinion).

59. Judicial scrutiny of military decisions to carry out a preventative attack that causes the death of terrorists and innocent civilians is by its very nature of limited scope. There are two reasons for this: first, judicial scrutiny cannot be exercised prospectively. Once we have determined in this judgment of ours what the provisions of customary international law that apply in the matter before us are, we naturally cannot examine its realization prospectively. The judicial scrutiny in this matter naturally occurs retrospectively. Second, the main investigation should be made by the investigatory committee which according to international law should carry out an objective investigation that is made retrospectively. The scrutiny of this court can naturally be directed only against the decisions of that committee, according to the accepted criteria in this regard.

(10) From general principles to the specific case

60. The order nisi that was issued at the request of the petitioners is this:

‘To order respondents 1-3 to come and explain why the “targeted killing” policy should not be cancelled and why they should not refrain from giving orders to respondents 4-5 to carry out this policy, and also to order respondents 4-5 to come and explain why they should not refrain from carrying out operations of killing wanted persons in accordance with the aforesaid policy.’

A consideration of the ‘targeted killing’ — or, as we call it, a preventative attack that causes the death of terrorists, and sometimes also of innocent civilians — shows that the question of the legality of the preventative attack under customary international law is a complex one (for an analysis of the Israeli policy, see Y. Shany, ‘Israeli Counter-Terrorism Measures: Are They “Kosher” under International Law,’ in M.N. Schmitt and G. Beruto (eds.), Terrorism and International Law: Challenges and Responses 96 (2002); M. Gross, ‘Fighting by Other Means in the Mideast: A Critical Analysis of Israel’s Assassination Policy,’ 51 Political Studies 360 (2003); S.R. David, ‘Debate: Israel’s Policy of Targeted Killing,’ 17 Ethics and International Affairs 111 (2003); Y. Stein, ‘Response to Israel’s Policy of Targeted Killing: By Any Name Illegal and Immoral,’ 17 Ethics and International Affairs 127 (2003); A. Guiora, ‘Symposium: Terrorism on Trial: Targeted Killing as Active Self-Defense,’ 36 Case Western Res. J. Int’l L. 319; L. Bilsky, ‘Suicidal Terror, Radical Evil, and the Distortion of Politics and Law,’ 5 Theoretical Inquiries in Law 131 (2004)). What emerges is not that a preventative attack is always permitted or that it is always prohibited. The approach of customary international law as it applies to armed conflicts of an international character is that civilians are protected against being attacked by the armed forces. But this protection does not exist with regard to those civilians ‘for such time as they take a direct part in hostilities’ (art. 51(3) of the First Protocol). Targeting these civilians, even if it results in death, is permitted, provided that there is no less harmful measure and provided that innocent civilians in the vicinity are not harmed. The harm inflicted upon them should be proportionate. This proportionality is determined in accordance with an ethical test which seeks to strike a balance between the military advantage and the harm to civilians. It follows that we cannot determine that a preventative attack is always legal, just as we cannot determine that it is always illegal. Everything depends upon the question whether the criteria of customary international law relating to international armed conflicts permit a specific preventative attack or not.

Conclusion

61. The State of Israel is fighting against ruthless terrorism that is inflicted on it from the territories. The means available to it are limited. The state determined that an essential measure from a military perspective is the preventative attack upon terrorists in the territories that causes their death. This sometimes causes innocent civilians to be injured or killed. This use of this preventative attack, notwithstanding its military importance, should be done within the law. The maxim ‘When the cannons speak, the Muses are silent’ is well known. A similar idea was expressed by Cicero, who said: silent enim leges inter arma (laws are silent in times of war). These statements are regrettable. They do not reflect the law either as it is or as it should be (see Application under s. 83.28 of the Criminal Code (Re) [65], at p. 260). It is precisely when the cannons speak that we need laws (see HCJ 168/91 Morcus v. Minister of Defence [54], at p. 470). Every struggle of the state — whether against terrorism or against any other enemy — is carried out in accordance with rules and laws. There always exists a law that the state is liable to follow. Black holes do not exist (see J. Steyn, Democracy through Law: Selected Speeches and Judgments (2004), at p. 195). In our case, the law is determined by customary international law relating to armed conflicts of an international character. Indeed, the struggle of the state against terrorism is not waged ‘outside’ the law. It is waged ‘within’ the law and with tools that the law makes available to a democracy.

62. The war of the state against terrorism is a war of the state against its enemies. It is also the war of the law against those who attack it (see HCJ 320/80 Kawasma v. Minister of Defence [55], at p. 132). In one case that considered the laws of war in an armed conflict, I said:

‘This fighting is not carried out in a normative vacuum. It is carried out according to the rules of international law, which set out the principles and rules for waging war. The statement that “when the cannons speak, the Muses are silent” is incorrect. Cicero’s aphorism that at a time of war the laws are silent does not reflect modern reality… The reason underlying this approach is not merely pragmatic, the result of the political and normative reality. The reason underlying this approach is much deeper. It is an expression of the difference between a democratic state that is fighting for its survival and the fighting of terrorists who want to destroy it. The State is fighting for and on behalf of the law. The terrorists are fighting against and in defiance of the law. The war against terror is a war of the law against those who seek to destroy it… But it is more than this: the State of Israel is a state whose values are Jewish and democratic. We have established here a state that respects law, that achieves its national goals and the vision of generations, and that does so while recognizing and realizing human rights in general and human dignity in particular; between these two there is harmony and agreement, not conflict and alienation’ (Almadani v. Minister of Defence [6], at pp. 34-35 {52-53}; see also Morcus v. Minister of Defence [54], at p. 470; HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [56], at p. 369).

Indeed, in the struggle of the state against international terrorism, it is obliged to act in accordance with the rules of international law (see M. Kirby, ‘Australian Law – After September 11, 2001,’ 21 Austl. Bar. Rev. 253 (2001)). These rules are based on a balance. They are not a question of all or nothing. I discussed this in Ajuri v. IDF Commander in West Bank [9], where I said:

‘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’ (HCJ 7015/02 Ajuri v. IDF Commander in West Bank [6], at p. 383 {120}).

Indeed, the struggle against terrorism has turned our democracy into a ‘defensive democracy’ or a ‘militant democracy’ (see A. Sajo, Militant Democracy (2004)). But this struggle must not be allowed to deprive our system of government of its democratic character.

63. The question is not whether it is permitted to defend oneself against terrorism. Certainly it is permitted to do so, and sometimes it is also a duty to do so. The question is the manner in which one responds. In this regard, a balance should be struck between security needs and the rights of the individual. This balance imposes a heavy burden on those involved in the defence of the state. Not every effective measure is also a legal one. The end does not justify the means. The armed forces need to train themselves to act in accordance with the rules of law. This balance imposes a heavy burden on the justices, who need to determine, on the basis of existing law, what is permitted and what is prohibited. I discussed this in one case, where I said:

‘The decision has been placed at our door, and we must accept it. We have a duty to preserve the legality of government even in hard cases. Even when the cannons speak and the Muses are silent, the law exists and operates, and it determines what is permitted and what is prohibited, what is legal and what is illegal. And where there is law, there is also a court that determines what is permitted and what is prohibited, what is legal and what is illegal. Some of the public will rejoice at our decision; the rest of it will criticize it. It is possible that neither the former nor the latter will read out reasoning. But we shall do our duty’ (HCJFH 2161/96 Sharif v. Home Front Commander [57], at p. 491).

Indeed, the decision in the petition before us is not simple:

‘We are members of Israeli society. Although we sometimes find ourselves in an ivory tower, that tower is in the heart of Jerusalem, which has on more than one occasion suffered from ruthless terror. We are aware of the killing and destruction that the terror against the state and its citizens brings in its wake. Like every other Israeli, we too recognize the need to protect the State and its citizens against the serious harm of terror. We are aware that, in the short term, this judgment of ours will not make the state’s struggle against those that attack it any easier. But we are judges. When we sit in judgment, we ourselves are being judged. We act to the best of our conscience and understanding. As to the struggle of the State against the terror that besets it, we are convinced that, in the final analysis, its struggle in accordance with the law and its provisions strengthens its power and its spirit. There is no security without law. Upholding the requirements of the law is an element of national security (Beit Sourik Village Council v. Government of Israel [17], at p. 861 {323}).

64. In one case we considered the question whether the state was entitled to order its interrogators to adopt special interrogation measures that involved the use of force against terrorists in a situation of a ‘ticking bomb.’ Our answer to this question was no. I described in my opinion the difficult security reality that Israel faced, and I added:

‘We are aware that this decision does not make it easier to deal with that reality. This is the destiny of a democracy — it does not see all means as acceptable, and the ways of its enemies are not always open to it. A democracy must sometimes fight with one hand tied behind its back. Even so, democracy has the upper hand. The rule of law and the liberty of the individual constitute important components in its understanding of security. In the final analysis, they strengthen its spirit and this strength allows it to overcome its adversities’ (HCJ 5100/94 Public Committee Against Torture v. Government of Israel [58], at p. 845 {605}).

Let us pray that this is so!

It has therefore been decided that it cannot be determined ab initio that every targeted killing is prohibited under customary international law, just as it cannot be determined ab initio that every targeted killing is permitted under customary international law. The laws relating to targeted killings are determined in customary international law, and the legality of each individual attack needs to be decided in accordance with them.

Vice-President E. Rivlin

1.    I agree with the important and comprehensive opinion of my colleague President A. Barak.

The increase in terrorism in recent years — an increase both in scope and intensity — has raised difficult questions concerning the manner in which a democratic state should and may fight against the persons who rise up against it and its citizens to destroy them. Indeed, it is not disputed that a state may and should fight terrorism. It is also not disputed that not all means are permitted. It is difficult to map out the correct way of how to fight terrorism and defend oneself against it. The ordinary means whereby a state protects itself and its citizens are not necessarily effective against terrorist organizations and their members. Even policing and enforcement methods that characterize the fight against ‘conventional’ criminal activity are unsuited to the needs of fighting terrorism (see also D. Statman, ‘Targeted Killing,’ 5 Theoretical Inquiries in Law 179 (2004)). For these reasons, the State of Israel (like other states) has over the years employed and continues to employ various operations in order to deal with terrorism. This court, on various occasions, is called upon to consider the question of the delicate balances involved in making use of these courses of action.

The petition before us concerns the ‘targeted killing’ policy. In this policy, the State of Israel attacks persons that it identifies as being involved in the planning and execution of terror attacks. The goal, on the one hand, is to protect the civilians and armed forces of the State of Israel, and on the other hand, to prevent an attack upon, or to minimize collateral damage to, the Palestinian civilian population. My colleague President A. Barak is of the opinion that the question before us should be examined in light of the rules of international law relating to an armed conflict (or dispute) of an international character. I agree with this position (see also J. N. Kendall, ‘Israeli Counter-Terrorism: “Targeted Killings” under International Law,’ 80 N.C.L. Rev. 1069 (2002)). An armed dispute has existed for many years between Israel and the various terrorist organizations operating in the territories. This dispute, as my colleague the president says, does not exist in a normative vacuum. Two normative sets of laws apply. In the words of my colleague the president: ‘In addition to the provisions of international law governing an armed conflict, the basic principles of Israeli public law are likely to apply. These basic principles are carried by every Israeli soldier in his backpack and they go with him wherever he goes.’ Indeed, two normative systems require consideration in our case: one is the rules of international law, and the other is the legal rules and moral principles of the State of Israel, including the basic value of human dignity.

2.    In his consideration of the normative system incorporated in the rules of international law, my colleague the president addresses the question of the correct classification of terrorist organizations and their members: should they be regarded as combatants or civilians, or perhaps as a separate group of unlawful combatants? My colleague’s conclusion is that, in so far as the law currently stands, ‘we do not have before us sufficient information that allows us to recognize the existence of this third category’ of unlawful combatants, and since such combatants do not satisfy the conditions for being included in the category of ‘combatants,’ they should be classified as civilians. He clarifies that this classification does not, within the framework of international law, grant protection to civilians who are taking a direct part in hostilities; these persons are therefore not protected against attack, when they are taking a direct part in terrorist operations.

The issue of the correct classification of terrorist organizations and their members gives rise to difficult questions. Customary international humanitarian law requires the parties to the dispute to distinguish between civilians and combatants, between military objectives and civilian objectives, and to refrain from causing excessive damage to enemy civilians. The question is whether reality has not created, de facto, an additional group that is subject to a special law. Indeed, the scope of the danger presented by the terrorist organizations to the State of Israel and the safety of its citizens, the unsuitability of the measures usually employed against civilian lawbreakers and the threat arising from terrorist activity all give rise to a feeling of discomfort when we try to adapt the traditional category of ‘civilians’ to those persons who are taking a direct part in acts of terrorism. The latter are not ‘combatants’ according to the definition of international law. The manner in which the term ‘combatants’ has been defined in the relevant conventions resulted precisely from a desire to deny ‘unlawful combatants’ certain protections that are given to ‘lawful combatants’ (especially protections concerning the status of prisoners of war and not being brought to trial). They are ‘unprivileged belligerents’ (see K. Watkin, Warriors without Rights? Combatants, Unprivileged Belligerents, and Struggle Over Legitimacy, Harvard Program on Humanitarian Policy and Conflict Research, ‘Occasional Paper’ (Winter 2005, no. 2); R.R. Baxter, ‘So Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs,’ 28 British Year Book of International Law 342 (1951)). But it is precisely the characteristics of terrorist organizations and their members that exclude them from the category of ‘combatants’ — the absence of recognizable emblems and the refusal to observe the laws and customs of war — that create a difficulty, in so far as this exclusion gives a better status, even if only in certain matters, to someone who chooses to become an ‘unlawful’ combatant, who acts contrary to the rules of international law and the rules of morality and humanitarianism.

The classification of members of terrorist organizations under the category of ‘civilian’ is not, therefore, self-evident. Dinstein wrote in this context that:

‘… a person is not allowed to wear simultaneously two caps: the hat of civilian and the helmet of a soldier. A person who engages in military raids by night, while purporting to be an innocent civilian by day, is neither a civilian nor a lawful combatant. He is an unlawful combatant in the sense that he can be lawfully targeted by the enemy, but he cannot claim the privileges appertaining to lawful combatancy. Nor does he enjoy the benefits of civilian status: Article 5 (first Paragraph) of the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War specifically permits derogation from the rights of such a person (the derogation being less extensive in occupied territories, pursuant to the second Paragraph of Article 5)’ (Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge, 2004) at pp. 29-30).

It has also been said that: ‘… If it is not fitting to regard terrorists as combatants, and in consequence of this to give them the protections given to combatants, they should certainly not be regarded as civilians who are not combatants and be given far greater rights’ (E. Gross, Democracy’s Struggle Against Terrorism: Legal and Moral Aspects (2004), at p. 76; see also Y. Dinstein, ‘Unlawful Combatancy,’ 32 Israel Yearbook on Human Rights 249 (2002); Baxter, ‘So Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs,’ supra). Those who believe that a third category of lawbreakers exists emphasize that this includes those persons who seek to obscure the dividing line between civilians and combatants: J.C. Yoo and J.C. Ho, ‘The New York University–University of Virginia Conference on Exploring the Limits of International Law: The Status of Terrorists,’ 33 Virginia Journal of International Law 217 (2003). The difficulty may become even greater if we take into account that those persons who do not satisfy the requirements either of lawful combatants or of innocent civilians are not homogeneous. They include groups that are not necessarily identical to one another from the viewpoint of their willingness to accept the basic legal and humanitarian norms. In particular, we should distinguish in this context between unlawful combatants who fight against armed forces and those who deliberately operate against civilians.

It would therefore appear that international law needs to be brought into line with the age in which we live. In view of the facts that were submitted before us, my colleague the president proposes that we adapt the law by interpreting the existing law, which in his opinion recognizes two categories — combatants and civilians (see also S. Zachary, ‘Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?’ 38 Israel L. Rev. 379 (2005)). As we have said, there may be other approaches. I see no need to expand upon them, since in view of the rules of interpretation proposed by my colleague the president, the fundamental difficulty loses much of its urgency.

The interpretation that my colleague President A. Barak proposes de facto creates an additional category, and rightly so. It is possible to derive this from the category of combatants (‘unlawful combatants’), and it is possible to derive this from the category of civilians. My colleague the president follows the latter path. If we follow him, we will derive from this category the group of civilians who are international lawbreakers, whom I would call ‘uncivilized civilians.’ But whichever path we follow, there is no difference in the result, since the interpretation that my colleague the president proposes to give the provisions of international law adapts the rules to the new reality. I agree with this interpretation. It is a dynamic interpretation that rises above the limitations of a literal reading of the laws of war.

3.    Against the background of the differences between ‘lawful’ combatants and ‘international lawbreaking’ combatants, it is possible to draw an analogy between the combat methods that are permitted in a struggle between two armed forces and the ‘targeted killing’ of terrorists (see also Statman, ‘Targeted Killing,’ supra). The approach underlying the ‘targeted killing’ policy is that only persons who are actually involved in terrorist activity should be targeted. Indeed, in a conventional war the combatants are identifiable and distinguishable from the civilian population. It is permitted to target these combatants (subject to the limitations of international law). Civilians may not be targeted. Similarly, within the framework of the struggle against terrorism, it is permitted to target international lawbreaking combatants, but harming civilians should be avoided in so far as possible. The difficulty arises of course from the fact that the unlawful combatants by definition do not act in accordance with the laws of war, which means, inter alia, that they very often operate from a concealed position among the civilian population, which is contrary to the express provisions of the First Additional Protocol to the 1977 Geneva Conventions. They do this in order to obtain an advantage that arises from the fact that the opposing forces wish to respect the rules of international law (see J. Callen, ‘Unlawful Combatants and the Geneva Conventions,’ 44 Va. J. Int’l L. 1025 (2004)).

But even under the difficult conditions of fighting against terrorism, the distinction between lawbreaking combatants and civilians should be maintained. This, for our purposes, is the significance of the word ‘targeted’ in the expression ‘targeted killings.’ The significance is the requirement of proportionality that my colleague the president discusses at length.

4.    In so far as the implementation of the requirement of proportionality is concerned, the proper premise emphasizes the rights of innocent civilians. The State of Israel has the duty to respect the lives of the civilians on the other side. It is liable to protect its own civilians while respecting the lives of the civilians who are not under its effective control. When we consider the rights of innocent civilians, we will find it easier to recognize the importance of the restrictions placed upon the manner in which the armed conflict is conducted. The duty to respect the civilians on the other side is clearly stated in the rules of international law (see E. Benvenisti, ‘Human Dignity in Combat: The Duty to Spare Enemy Civilians,’ 39 Israel L. Rev. 81 (2006), at p. 96).

This duty is also a part of the other normative system that governs the armed conflict: it is a part of the moral code of the state and the supreme principle of preserving human dignity. I discussed this with regard to the issue of the use of the ‘prior warning’ procedure (also known as the ‘neighbour’ procedure):

‘… In one matter the lines are clear and sharp — the respect for human dignity as such. An army occupying a territory under a belligerent occupation has the duty of protecting the life of the local inhabitant. It also has the duty of protecting his dignity. Making such an inhabitant, who is caught in a battle zone, choose whether or not to agree to the army’s request to convey a warning to a wanted person places him in an impossible situation. The choice itself is immoral. It violates human dignity’ (HCJFH 10739 Minister of Defence v. Adalah Legal Centre for Arab Minority Rights in Israel [59]).

The two normative systems that govern armed conflicts are as one in regarding the principle of human dignity as central. This principle nourishes the interpretation of international law, just as it nourishes the interpretation of Israeli internal public law. It expresses a general value that gives rise to various specific duties (on the importance of this principle in international law and its significance with regard to the treatment of civilians, see Benvenisti, ‘Human Dignity in Combat: The Duty to Spare Enemy Civilians,’ supra; it should be noted that Benvenisti identifies two principles that are relevant to the implementation of the principle of respecting human dignity in the context under discussion: the principle of individualism, which states that every person is responsible solely for his own actions, and the principle of universalism, according to which all individuals are entitled to the same rights, irrespective of the group to which they belong. This principle is not expressly recognized in the law of armed conflicts. But this does not negate the duty relating to enemy civilians. The scope of the duty varies but not the existence of the duty itself (ibid., at p. 88)).

5.    The principle of proportionality, which is a general principle that is enshrined in various provisions of international law, seeks to realize this duty. This principle does not allow disproportionate collateral damage to innocent civilians. Thus it demands that the benefit that arises from realizing the proper military objective should be commensurate with the damage caused to innocent civilians. It demands that the collateral damage should not be excessive in the circumstances of the case. There are some who regard the weighing of the benefit against the damage as a concretization of the requirement to refrain from harming civilians excessively. Although the connection between the two is clear, it would appear that there may be collateral damage to the civilian population that is so serious that even a military objective of real benefit will not justify causing it. After all, we are speaking of ethical requirements. ‘This is an ethical test,’ my colleague the president says. ‘It is based on a balance between conflicting values and interests.’ This ethical outlook is accepted in customary international law with regard to the protection of civilians (art. 51 of the First Additional Protocol to the 1977 Geneva Conventions). It is also accepted in the national legal systems of many countries. This test, as President Barak said in one case, ‘seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one (Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [33]).

The duty to respect the lives of innocent civilians is therefore the premise. It gives rise to the requirement that the collateral damage to civilians should not be excessive and should be proportionate to the benefit arising from the military operation. This ethical outlook logically imposes restrictions on attacks against the lawbreaking combatants themselves. The restrictions may relate to the type of weapon that is used during the targeted killing. The restrictions may also result in choosing a method that reduces the danger to the lives of innocent civilians. The restrictions may relate to the degree of care that should be taken in identifying the target for the killing. These are all restrictions that seek in essence to realize the duty to respect the lives of innocent civilians, and they will be interpreted accordingly.

The premise is therefore the rights of innocent civilians. It is the premise, but it is not the only premise. It does not detract from the human dignity of the lawbreaking combatants themselves. Admittedly, international law does not grant lawbreaking combatants equal rights to those given to lawful combatants or, conversely, to innocent civilians. But human dignity is a supreme principle that applies to every person, even in times of war and conflict. It is not conditional upon reciprocity. One of the consequences of this, which is not disputed by the state, is that whenever it is possible to arrest a terrorist who is taking a direct part in hostilities and bring him to trial, the state will do so. This is a possibility that should always be considered. But as my colleague the president says, sometimes this possibility may be completely impractical or may endanger soldiers excessively.

6.    The principle of proportionality is easy to state, but hard to implement. When we consider it prospectively, under time constraints and on the basis of limited sources of information, the decision may be a difficult and complex one. Frequently it is necessary to consider values and principles that cannot be easily balanced. Each of the competing considerations is based upon relative variables. None of them can be considered as standing on its own. Proportionate military needs include humanitarian elements. Humanitarian considerations take into account existential military needs. As my colleague the president says, the court determines the law that governs the decision of the military commander. The professional military decision is the responsibility of the executive branch, and the court will ask itself if a reasonable military commander could have made the decision that was actually made, in view of the normative principles that apply to the case (cf. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, which was submitted to the International Criminal Tribunal for the former Yugoslavia in June 2000).

7.    In conclusion, like my colleague the president, I too am of the opinion that it cannot be decided ab initio that a targeted killing operation is always illegal, just as it cannot be decided ab initio that it is legal and permitted in all circumstances. Such an operation — in order to be legal — must satisfy the rules of law, including the requirement of proportionality as explained above, from an outlook that places the main emphasis on the right of the State of Israel to protect itself and the lives of its civilians, but at the same time regards the principle of human dignity as a fundamental value.

I therefore agree with the opinion of my colleague President A. Barak.

President D. Beinisch

I agree with the judgment of President (Emeritus) Barak and would like to emphasize several aspects of the difficult subject that has been brought before us.

In the petition before us the petitioners requested us to order the respondents to cancel the ‘targeted killing’ policy and to refrain from carrying out any operations within the framework of that policy. This is therefore a petition for a general and broad relief that relies on the petitioners’ claim that Israel’s policy in this regard is ‘manifestly illegal.’ Among the other arguments from the field of international law and Israeli internal law, the petitioners also based their claims on specific examples from the past, which they believe show the illegality of the aforesaid policy. These specific examples indicate the problems and the risks involved in the ‘targeted killing’ policy, but they cannot decide the legal question of the legality of the policy in general.

For the reasons set out in the opinion of my colleague President Barak, I agree with the conclusion that the question before us is governed by the laws applying to international armed conflicts, and that the petitioners’ sweeping position is not mandated by the rules of international humanitarian law. The conclusion reached by President Barak, with which I agree, is that it cannot be said that the aforesaid policy is always prohibited, just as it cannot be said that it is permitted in all circumstances at the discretion of the military commander. The legal question before us is complex and cannot be addressed in the broad and all-embracing manner as argued by the petitioners.

This court has held many times in the past that even combat operations are governed by the norms enshrined in both international law and internal law, and that military activity does not take place in a normative vacuum. The legal difficulties that we are required to confront derive first and foremost from the fact that international law has not yet developed the laws of war in a manner that will make them suitable for war against terrorist organizations as opposed to a regular army. Therefore, we are required make use of interpretive tools in order to adapt existing humanitarian law to the needs of the cruel reality with which the State of Israel is contending. It should be noted that the spread of the scourge of terrorism in recent years is a concern of legal scholars in many countries and experts in international law, who seek to establish the norms of what is permitted and prohibited with regard to terrorists who do not comply with any law. Against this normative reality, I too agree that within the framework of existing law, terrorists and their organizations should not be classified as ‘combatants’ but as ‘civilians.’ In view of this, they are subject to art. 51(3) of the First Additional Protocol to the 1977 Geneva Conventions — an arrangement that is a part of customary international law — according to which:

‘Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.’

In his opinion President Barak discussed at length the interpretation of the main elements of the aforesaid art. 51(3), in view of the need to define the expression ‘civilians’ that ‘take a direct part in hostilities’ and to clarify the meaning of ‘for such time.’ As can be seen from the interpretation given in the president’s opinion, the power of the state to carry out ‘targeted killing’ operations is subject to restrictions and reservations. From these reservations we see that not every involvement in terrorist activity will constitute taking ‘a direct part in hostilities’ under art. 51(3) and that we are speaking of activity relating to actual hostilities — activity which, although is not limited merely to the physical attack, does not include activity of indirect assistance (see para. 35 of the president’s opinion). I agree that the dilemmas that arise in view of the interpretation of the elements of the aforesaid art. 51(3) require a specific examination on a case by case basis. It should be remembered that the purpose of the ‘targeted killing’ is to prevent harm to human life as a part of the duty of the state to protect its armed forces and civilians. Since art. 51(3) is an exception to the duty to refrain from harming the lives of innocent civilians, great caution should be exercised when considering, in the appropriate circumstances, the possibility of endangering the lives of civilians. When exercising this caution, an examination should be made of the level of information required in order to classify a ‘civilian’ as someone who is taking a direct part in the hostilities. This information should be reliable, substantial and convincing with regard to the risk presented by the terrorist to human life — a risk that includes persistent activity that is not limited to sporadic activity or a single concrete act. I would add that in appropriate circumstances information concerning the activity of the terrorist in the past may be used to examine the risk that he presents in the future. I would also add that when assessing the risk, the likelihood of the hostile activity that endangers human life should be considered. In this regard, a remote suspicion is insufficient; there should be a significant probability that such a risk exists. I agree of course with the finding that a thorough and independent (retrospective) investigation should be made with regard to the correctness of the identification and the circumstances of the attack. To all of the above I would add two points: first, no use should be made of ‘targeted killings’ when it is possible to arrest a terrorist who is taking a direct part in hostilities without any real risk to the lives of the armed forces. Second, the principle of proportionality as accepted in customary international law, according to which disproportionate collateral damage to innocent civilians should be avoided, should be observed. When the harm to innocent civilians is not proportionate to the benefit of the military operation (the test of ‘proportionality in the narrow sense’), the ‘targeted killing’ will be disproportionate. This matter was also discussed in depth by my colleague Vice-President Rivlin, and I agree with him too. Ultimately, when a ‘targeted killing’ operation is carried out in accordance with the reservations that have been discussed and within the framework of the law relating to international armed conflicts in customary humanitarian law as we have interpreted it, we are not speaking of taking human life in an arbitrary manner, but of an action that is intended to save human life.

Therefore I too am of the opinion that in Israel’s difficult war against terror that besets it, we cannot say in a sweeping manner that the use of the measure of ‘targeted killings’ as one of the strategies in the war against terrorism is prohibited, and thereby prevent the state from using a strategy which, in the opinion of those responsible for security, is essential for the protection of the lives of Israeli inhabitants. Notwithstanding, in view of the extreme nature of the ‘targeted killing’ strategy, it should only be used subject to the restrictions and reservations outlined in our judgment and in accordance with the circumstances and merits of each individual case.

HCJ 4764/04

1.         Physicians for Human Rights

2.         Association for Civil Rights in Israel

3.         Centre for Defence of the Individual

4.  Betzelem — Israeli Information Centre for Human Rights in the Occupied Territories

v.

IDF Commander in Gaza

The Supreme Court sitting as the High Court of Justice

[30 May 2004]

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

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

Facts: The petition was filed during combat operations against the terror infrastructure in the area of Rafah in the Gaza Strip. The petitioners sought various kinds of relief from the court. The issues raised by the petitioners were the supply of water, food, electricity and medical supplies, the evacuation of the wounded, the burial of the dead, an investigation into an incident in which a crowd was allegedly shelled, and a request that doctors should be allowed into the Gaza Strip in order to assess the medical needs in the area. The petition was heard within a very compressed timeframe, while the combat operations were taking place.

Held: Most of the issues were resolved in the course of the few days during which the petition was heard. Therefore there was no need for the court to grant any relief in these matters by the time it gave judgment. Notwithstanding, the court held that the military commander was liable to make preparations in advance of any military action, so that foreseeable problems could be resolved more quickly and efficiently.

With regard to the alleged shelling of a crowd, an investigation was taking place, and the court held that the petitioners must wait for the results of the investigation before turning to the court.

With regard to the request that doctors should be allowed into the Gaza Strip, the court upheld the respondent’s position that Israeli doctors could not be allowed into the Gaza Strip because of the very real danger they would be harmed or taken hostage. Any doctors who were not Israeli citizens could enter the Gaza Strip and assess the medical needs in the area.

Petition denied.

Legislation cited:

Basic Law: Human Dignity and Liberty, s. 1.

Israeli Supreme Court cases cited:

[1]        HCJ 4573/04 Albesioni v. IDF Commander (unreported).

[2]        HCJ 4585/04 Shakfahat v. IDF Commander in Gaza Strip (unreported).

[3]        HCJ 4694/04 Abu Atra v. IDF Commander in Gaza Strip (unreported).

[4]        HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [2003] IsrSC 57(1) 403.

[5]        HCJ 3451/02 Almadani v. Minister of Defence [2002] IsrSC 56(3) 30; [2002-3] IsrLR 47.

[6]        HCJ 3114/02 Barakeh v. Minister of Defence [2002] IsrSC 56(3) 11; [2002‑3] IsrLR 39.

[7]        HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel [1999] IsrSC 53(4) 817; [1998‑9] IsrLR 567.

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

[9]        HCJ 358/88 Association for Civil Rights in Israel v. Central Commander [1989] IsrSC 43(2) 529; IsrSJ 9 1.

[10]     HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [2003] IsrSC 57(1) 385; [2002‑3] IsrLR 123.

[11]     HCJ 2936/02 Physicians for Human Rights v. IDF Commander in West Bank [2002] IsrSC 56(3) 3; [2002-3] IsrLR 35.

[12]     HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [2002] IsrSC 53(3) 26.

[13]     HCJ 3436/02 Custodia Internazionale di Terra Santa v. Government of Israel [2002] IsrSC 56(3) 22.

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

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

[16]     CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [1999] IsrSC 53(3) 600; [1998-9] IsrLR 259.

[17]     HCJ 66/81 Inspector-General of Police v. Ramla Magistrates Court Judge Mr Baizer [1984] IsrSC 38(4) 337.

[18]     HCJ 3117/02 Centre for Defence of the Individual v. Minister of Defence [2002] IsrSC 56(3) 17.

[19]     CA 5604/94 Hemed v. State of Israel [2004] IsrSC 58(2) 498.

[20]     HCJ 9293/01 Barakeh v. Minister of Defence [2002] IsrSC 56(2) 509.

[21]     HCJ 3022/02 Physicians for Human Rights v. IDF Commander in Gaza Strip [2002] IsrSC 56(3) 39.

For the petitioners — F. Alaju.

For the respondents — A. Helman, Senior Deputy to the State Attorney; Y. Roitman, Assistant to the State Attorney.

JUDGMENT

President A. Barak

Is the State of Israel complying with various humanitarian obligations to which it is subject under international humanitarian law, during the military operations taking place in Rafah? This is the question before us.

Background

1.    Since 18 May 2004, active combat has been taking place in the area of Rafah in the Gaza Strip (see HCJ 4573/04 Albesioni v. IDF Commander [1]; HCJ 4585/04 Shakfahat v. IDF Commander in Gaza Strip [2]; HCJ 4694/04 Abu Atra v. IDF Commander in Gaza Strip [3]). According to the respondent’s statement, the combat activities are on a large scale. They are intended to damage the terror infrastructure in that area. The main goal is to locate tunnels that are used for smuggling weapons from the Egyptian part of Rafah to the Palestinian part. The fighting also has the aim of arresting persons wanted for acts of terror and locating weapons in the Rafah area. The activity taking place there includes battles with armed opponents. Many explosive charges have been directed against the IDF forces, and various weapons are being fired at them.

2.    The city of Rafah is divided into several neighbourhoods. Most of the military operations were in the neighbourhood of Tel A-Sultan. The IDF also entered the Brazil neighbourhood. During the night between the filing of the petition (20 May 2004) and the hearing the next morning (21 May 2004), the IDF left these two neighbourhoods, but the neighbourhoods are surrounded and controlled by the army.

3.    Before the fighting — in the light of experience from similar operations carried out in the past — the army took three steps that were intended to facilitate the solution of humanitarian problems. First, a ‘humanitarian centre’ was set up. This centre maintains contact with parties outside the area of operations. Thus, for example, various human rights organizations contact it. An attempt is made, on the spot, to resolve concrete problems arising in the course of the fighting. Second, a District Coordination Office (‘DCO’) was established. This DCO is in constant communication, with regard to humanitarian matters arising as a result of the fighting, with personnel from the Palestinian Ministry of Health, the Palestinian Red Crescent and the International Red Cross. The person in charge of the DCO in the southern part of the Gaza Strip is in direct contact with personnel from the Palestinian Ministry of Health and with local hospitals. It is his job to find a solution to problems arising as a result of the fighting. The person in charge of the DCO in the area of the Gaza Strip is Colonel Y. Mordechai. Third, every battalion involved in the fighting has an officer from the DCO. His job is to deal with humanitarian issues arising from the fighting, such as the evacuation of the Palestinian dead and wounded.

The petition

4.    The petitioners are four human rights organizations. They point to various instances of harm suffered by the local population in Rafah — which we will discuss below — as a result of the army’s military operations. They are petitioning that the army should allow medical teams and ambulances to reach the wounded in Rafah in order to evacuate them; that the evacuation should take place without prior coordination with the humanitarian centre; that the transport of medical equipment between Rafah and the hospitals outside it should be allowed; that medical teams or civilians involved in the evacuation of the dead or wounded should not be harmed or threatened; that the electricity and water supply to the neighbourhood of A-Sultan should be renewed and the supply of food and medicines for the residents of the neighbourhood should be allowed; that a team of physicians on behalf of the Physicians for Human Rights Organization (the first petitioner) should be allowed to enter hospitals in the Gaza Strip in order to assess the medical needs there. Finally, the petitioners ask that an incident (on 19 May 2004) in which a crowd of civilians was shelled and several residents were killed should be investigated. They also ask that an order should be made prohibiting the shooting or shelling of a crowd of civilians even if they contain armed persons who do not pose an immediate danger to life.

The respondent’s response

5.    The respondent asks us to deny the petition. It emphasizes that extensive military operations are continuing in the area. Battles are taking place against armed combatants. In this situation, great caution is required when the court exercises judicial review of the activities of the security forces. The activity lies on the border of the sphere of institutional justiciability. On the merits, the respondent claims that Rafah was a main channel for bringing weapons into the Gaza Strip, mainly by means of tunnels dug between the Egyptian part of Rafah and the Palestinian part. These smuggled weapons are used to attack the army and Israeli settlements both in the Gaza Strip and outside it. The purpose of the fighting is to damage the Palestinian terror infrastructure in this area; to locate tunnels being used for smuggling weapons; to arrest Palestinians wanted for acts of terror; to locate weapons in the Rafah area. Within the framework of the IDF’s operations in the area of Rafah, battles took place with armed combatants. Many explosive charges were used against the IDF forces. They were fired upon with various weapons, and intensive fighting took place between the IDF and the armed combatants. In their written and oral arguments, counsel for the respondent emphasized that within the framework of the fighting, the IDF has made considerable efforts to take into account the needs of the local population and to minimize in so far as possible any damage to the civilian population, and contact and coordination personnel were appointed in advance for this purpose. Notwithstanding, the position in the area is complex, since the terrorists are making use of the homes of Palestinians for firing on the IDF. They operate from within the Palestinian population, and as a result they make it difficult for the IDF to deal with these problems. Nonetheless, the army is fulfilling its obligation to the civilian population and is doing everything into order to minimize the damage to it. In this respect, the respondent responded — as we will see below — to each of the petitioners’ claims. The respondent emphasizes that difficulties are caused by the fact that the terrorists are operating from among the Palestinian population and they sometimes use it as a human shield. The respondent also points out that the description of the position in the petition is based on Palestinian sources, and it includes gross exaggerations, whose sole purpose is to paint the humanitarian picture in far worse a light than the actual reality.

The proceeding before us

6.    The petition was filed in the Supreme Court on Thursday, 20 May 2004. It was set down for a hearing before us the next morning, 21 May 2004. Prior to this hearing, we asked for and received a written response from the respondent. At the oral hearing, in addition to the representatives of the parties, the head of the District Coordination Office for the Gaza Strip, Colonel Y. Mordechai, and the Chief Military Attorney, were present at the hearing. Colonel Mordechai informed us orally about various matters that arose before us. Sometimes he asked for a little time to find out what was happening in the area of Rafah, while he contacted his men in the area of Rafah who gave him details, and he passed them on to us. At the end of the arguments, we suggested that a certain arrangement — which we will discuss below — should be considered with regard to the burial of the dead (see para. 25 below). In this respect we received a notice containing an update from the State Attorney on Sunday, 23 May 2004. On 24 May 2004, we asked for the petitioner’s response. Before this was received, we received on the same day (24 May 2004) an additional response from the respondent. The petitioners’ response was also received on the dame day, and it related both to the problem of burying the dead and to the issue of restoring electricity in Rafah. The respondent’s response to the petitioners’ notice was received on 27 May 2004, after the IDF left Rafah on 24 May 2004 and after the area was returned to the civilian and security control of the Palestinian Authority.

Judicial Review

7.    ‘Israel is not an island. It is a member of an international community...’ (HCJ 5591/02 Yassin v. Commander of Ketziot Military Camp [4], at p. 412). The military operations of the army are not conducted in a legal vacuum. There are legal norms — some from customary international law, some from international law enshrined in treaties to which Israel is a party, and some from the basic principles of Israeli law — which provide rules as to how military operations should be conducted. I discussed this in one case, where I said:

‘Israel finds itself in a difficult war against rampant terror. It is acting on the basis of its right to self-defence (see art. 51 of the United Nations Charter). This fighting is not carried out in a normative vacuum. It is carried out according to the rules of international law, which set out the principles and rules for waging war. The statement that “when the cannons speak, the Muses are silent” is incorrect. Cicero’s aphorism that at a time of war the laws are silent does not reflect modern reality…

The reason underlying this approach is not merely pragmatic, the result of the political and normative reality. The reason underlying this approach is much deeper. It is an expression of the difference between a democratic state that is fighting for its survival and the fighting of terrorists who want to destroy it. The State is fighting for and on behalf of the law. The terrorists are fighting against and in defiance of the law. The war against terror is a war of the law against those who seek to destroy it (see HCJ 320/80 Kawasma v. The Minister of Defence, at 132). But it is more than this: the State of Israel is a state whose values are Jewish and democratic. We have established here a state that respects law, that achieves its national goals and the vision of generations, and that does so while recognizing and realizing human rights in general and human dignity in particular; between these two there is harmony and agreement, not conflict and alienation’ (HCJ 3451/02 Almadani v. Minister of Defence [5], at pp. 34-35 {52-53}).

Indeed, all the military operations of every army are subject to the rules of international law governing these operations. I discussed this in one case where I said: ‘Even in a time of combat, the laws of war must be upheld. Even in a time of combat, everything must be done in order to protect the civilian population…’ (HCJ 3114/02 Barakeh v. Minister of Defence [6], at p. 16 {46}).

8.    The judicial review of the Supreme Court is normally exercised ex post facto. The act which is the subject of the complaint has already been committed. Occasionally, a significant period of time elapses between the event and its review in the Supreme Court, which examines the legal consequences after the event. This is not the case here. We were not asked by the petitioners to examine the legal significance of military operations that have already been carried out and completed. The purpose of the petition is to direct the immediate conduct of the army. Our judicial review is prospective. It is exercised while the military activity is continuing. This imposes obvious constraints on the court. Admittedly, the mere fact that the hearing is prospective is not unprecedented in the Supreme Court. Thus, for example, in HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel [7], we examined the legality of a guideline that allowed physical pressure to be exerted against persons under interrogation. The purpose of our review in that case was not to examine interrogations that took place in the past; the purpose was to consider interrogations that were taking place at that time. Nonetheless, the case before us is special in that the judicial review is taking place before the military operations have ended, and while IDF soldiers are facing the dangers inherent in the combat. In this regard, it should be emphasized once again that:

‘Certainly this court will not adopt any position regarding the manner in which the combat is being conducted. As long as soldiers’ lives are in danger, the decisions will be made by the commanders. In the case before us, no claim was brought before us that the arrangement that we reached endangers our soldiers’ (HCJ 3114/02 Barakeh v. Minister of Defence [6], at p. 16 {46}).

            This is the case here: the humanitarian concerns have been resolved without endangering the lives of soldiers or the military operations. Subject to this restriction, this case is no different from other cases where this court examines the legality of military operations.

9.    Judicial review does not examine the wisdom of the decision to carry out military operations. The issue addressed by judicial review is the legality of the military operations. Therefore we presume that the military operations carried out in Rafah are necessary from a military viewpoint. The question before us is whether these military operations satisfy the national and international criteria that determine the legality of these operations. The fact that operations are necessary from a military viewpoint does not mean that they are lawful from a legal viewpoint. Indeed, we do not replace the discretion of the military commander in so far as military considerations are concerned. That is his expertise. We examine their consequences from the viewpoint of humanitarian law. That is our expertise.

The normative framework

10. The military operations of the IDF in Rafah, in so far as the local inhabitants are concerned, are governed by the Hague Convention Respecting the Laws and Customs of War on Land, 1907 (hereafter — the Hague Convention) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter — the Fourth Geneva Convention). In addition to this, there are the general principles of administrative law, which accompany every Israeli soldier (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [8]; HCJ 358/88 Association for Civil Rights in Israel v. Central Commander [9], at p. 536 {12}). According to these general principles of Israeli administrative law, the army must act in the occupied area, inter alia, with (substantive and procedural) fairness, reasonableness and proportionality, with a proper balance between individual liberty and the public interest (see HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [10], at p. 396 {136}).

11. The basic injunction of international humanitarian law applicable in times of combat is that the local inhabitants are ‘… entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof…’ (art. 27 of the Fourth Geneva Convention; see also art. 46 of the Hague Convention). This general normative-humanitarian framework was formulated by Gasser, in the following language:

‘Civilians who do not take part in hostilities shall be respected and protected. They are entitled to respect for their persons, their honour, their family rights, their religious convictions, and their manners and customs. Their property is also protected’ (H.P. Gasser, ‘Protection of the Civilian Population,’ The Handbook of Humanitarian Law in Armed Conflicts (D. Fleck ed., 1995), at p. 211).

            What underlies this basic provision is the recognition of the value of man, the sanctity of his life and the fact that he is entitled to liberty (cf. s. 1 of the Basic Law: Human Dignity and Liberty; see also J.S. Pictet (ed.), Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at p. 199). His life or his dignity as a human being may not be harmed, and his dignity as a human being must be protected. This basic duty is not absolute. It is subject to ‘… such measures of control and security in regard to protected persons as may be necessary as a result of the war’ (last part of art. 27 of the Fourth Geneva Convention). These measures may not harm the essence of the rights (see Pictet, op. cit., at p. 207). They must be proportionate (Gasser, op. cit., at p. 220). Indeed, the military operations are directed against terrorists and hostile acts of terror. They are not directed against the local inhabitants (Gasser, op. cit., at p. 212). When these, as sometimes happens, enter a combat zone — and especially when terrorists turn the local inhabitants into ‘human shields’ — everything must be done in order to protect the lives and dignity of the local inhabitants. The duty of the military commander, according to this basic rule, is twofold. First, he must refrain from operations that attack the local inhabitants. This duty is his ‘negative’ obligation. Second, he must carry out acts required to ensure that the local inhabitants are not harmed. This is his ‘positive’ obligation (Gasser, op. cit., at p. 212). Both these obligations — the dividing line between which is a fine one —should be implemented reasonably and proportionately in accordance with the needs of the time and place.

12. In addition to the basic injunction regarding the human dignity of the local inhabitants during military operations, international humanitarian law establishes several secondary obligations. These are not a full expression of the general principle. They are merely a specific expression of it. Of these secondary obligations, we shall mention two that are relevant to the petition before us:

1.  The supply of food and medicines: ‘…the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate’ (art. 55 of the Fourth Geneva Convention; see Pictet, op. cit., at p. 300). In this context, humanitarian organizations and the Red Cross should be allowed to supply food and medicines (art. 59 of the Fourth Geneva Convention). Free passage of these consignments should be permitted (ibid., and see also art. 23 of the Fourth Geneva Convention). Of course, the consignments may be searched in order to ascertain that they are intended for humanitarian purposes (art. 59 of the Fourth Geneva Convention).

2.  Medical services: The proper operation of medical establishments in the area under belligerent occupation should be ensured (art. 56 of the Fourth Geneva Convention). Persons engaged in searching for the wounded shall be protected. They shall be recognizable by means of an identity card certifying their status (art. 20 of the Fourth Geneva Convention). The Red Cross and the Red Crescent shall continue their activities in accordance with the principles of the Red Cross (art. 63 of the Fourth Geneva Convention).

From the general to the specific

13. In their written petition and in their oral arguments, counsel for the petitioners presented a list of specific matters with regard to which the respondent is violating international humanitarian law. We asked for and received a written and oral response to each of these matters from counsel for the respondent. We also received updated explanations orally from Colonel Y. Mordechai. Let us now discuss each of these matters.

Water

14. Counsel for the petitioners argued before us that the entrance of tanks into the neighbourhood of Tel A-Sultan has destroyed the water infrastructure and as a result the supply of water to the whole of Rafah has been disrupted. Before the date of the oral arguments before us, one of the wells was repaired, and therefore there is a severe water shortage in the area. Water tankers are not coming to the houses, and therefore there is a problem with the water supply. The petitioners ask that we order the respondent to renew the water supply to the neighbourhood of Tel A-Sultan. In his oral response, Colonel Y. Mordechai said that the water wells in the neighbourhood of Tel A-Sultan were indeed damaged. As a result of this, there is a shortage of water in the southern part of the Gaza Strip. According to his report, as of the date when matters were presented before us, four out of five water wells had been repaired. The delay in the repairs was caused because the Palestinian repair team did not want to enter the neighbourhood of Tel A-Sultan, for fear of being injured. Later, on the initiative of Col. Mordechai, the Red Cross came in an international vehicle and most of the wells were repaired. In areas where there is still no running water (like in the neighbourhood of Tel A-Sultan), the army allows water to be brought in tankers. As of now, there are five water tankers in the neighbourhood, to which the inhabitants have access without difficulty. While he was explaining this to us, Col. Mordechai was told — and he told us — that six additional water tankers had entered the neighbourhood. We were also told that all the wells are now functioning. Diesel fuel has been brought into the neighbourhood to enable the operation of generators which allow water to be pumped from the wells. As a result of this, there is now running water in all the neighbourhoods of Rafah. In a notice that we received from counsel for the petitioners (on 24 May 2004), we were told that an enquiry directed to the Mayor of Rafah revealed that the water infrastructure in Rafah has not yet been repaired. According to him, the IDF’s tanks and bulldozers caused major damage to the water infrastructure. Water pipes have been cracked, and sewage has flooded the roads and polluted the drinking water. Many homes still have no water.

15. It is the duty of the military commander to ensure the supply of water in the area subject to military activities. This duty is not merely the (negative) duty to prevent damage to water sources and to prevent a disruption of the water supply. The duty is also the (positive) duty to supply water if there is a shortage. Everything should be done in order to protect water sources and to repair them with due speed. Water tankers should be provided if the normal water supply is not functioning properly. Lessons will certainly have been learned in this regard for the future.

Electricity

16. The petitioners claim that the neighbourhoods in Rafah are without electricity. An attempt to connect the Tel A-Sultan neighbourhood to the electricity network failed, and the whole city is without electricity. They ask that we order the respondent to restore the supply of electricity. In his oral response, Col. Mordechai said that electricity in the southern part of the Gaza Strip comes from Israel. During the military operations, the electricity infrastructure was damaged. The army — in coordination with the Rafah municipality — is working on repairing the damage. This takes time, as sometimes the workers have difficulty finding the source of the problem. In addition, the fighting taking place in the area makes it difficult to repair the electricity network properly. At the moment, there is electricity in the vast majority of Rafah, and everything will be done in order to complete the repairs so that electricity is restored for the whole area. Against this background, it seems to us that there is no need for any further action on our part. In a statement providing an update (on 24 May 2004), which was filed by the petitioners, we were told that many houses in Rafah still do not have electricity. Equipment that does not exist in the Gaza Strip is required in order to repair the network, and this must be imported from Israel. The closure of Karni crossing prevents the entry of the equipment and materials that are needed for repairing the electricity network. After the IDF forces left the area of Rafah and after military operations ceased, we received a statement from the respondent (on 27 May 2004). We were told that the area of Rafah was now under the civilian and security control of the Palestinian Authority, and not of the IDF forces. On the substantive question we were told that there is nothing to prevent the transfer of the equipment required for the repair of the electricity infrastructure through Karni crossing, provided that arrangements are made with the appropriate authorities in the IDF.

Medical equipment and medicines

17. Counsel for the petitioners said that there is a severe shortage of medicines, medical equipment and blood units in the A-Najar hospital, which, although it is located outside the area of combat, serves the area which is controlled by the IDF. Notice of this was given by the hospital to Professor Donchin, a member of the first petitioner (Physicians for Human Rights). The first petitioner prepared a vehicle containing medicines, bandages, and blood units. The vehicle is waiting by Erez Crossing, and it is not being allowed to enter the Gaza Strip. The petitioners request that we order the respondent to allow the supply of medicines to the inhabitants in the Tel A-Sultan neighbourhood. They also request that we order the respondent to allow the passage of vehicles carrying medical equipment between Rafah and the hospitals outside it, in Khan Younis and Gaza City. In his written response, Col. Mordechai said that the entry of medicines and medical equipment to the Rafah area is being allowed on a regular basis. There is nothing preventing the transfer of medical equipment from one area to another. The international border crossing at Rafah, which was closed during the fighting, was opened for this very purpose, in order to allow trucks carrying medical equipment from Egypt to enter the Gaza Strip area. In his oral response Col. Mordechai added that the entrance to the combat zone is through Karni Crossing. Any medical equipment that is brought to that gate will be transferred immediately to its destination, provided that it is not accompanied by Israeli civilians, because of the fear that they may be taken hostage. With regard to the position regarding medicines in the hospital, Col. Mordechai said that he spoke, on his own initiative, with the hospital director. At first, he was told of the shortage of blood units and basic medical equipment. After a short time, he was told that blood units had been received and that there was no longer a shortage. The shortage of first aid equipment continues. That same evening a truck from Egypt carrying medical equipment from Tunisia entered the Gaza Strip. In addition, four Red Cross trucks containing medicines entered via Karni Crossing. Col. Mordechai remains in direct contact with the Red Cross regarding this issue. Every request for the supply of medicines is accepted and carried out. During the fighting, oxygen tanks were permitted to be taken out of Gaza. These were filled in Israel and returned to the hospital. In her response, counsel for the petitioners said that contact had just been made between the first petitioner and the Red Cross, and that the vehicle prepared by it and the equipment in it would be taken to their destination. Counsel for the respondents also told us that he had just been told that four trucks carrying medical equipment had passed through Karni Crossing.

18. It is the obligation of the military commander to ensure that there is sufficient medical equipment in the war zone. This is certainly his obligation to his own soldiers. But his obligation extends also to the civilian population under his control. Within the framework of the preparations for a military operation, this issue — which is always to be expected — must be taken into account. In this regard, both the local medical system and the ability of the local hospitals to give reasonable medical care during the fighting must be considered in advance. Medical equipment must be prepared in advance in case of a shortage; the entry of medical equipment from various sources must be allowed in order to alleviate the distress; contact must be maintained, in so far as possible, with the local medical services. The obligation is that of the military commander, and the receipt of assistance from external sources does not release him from that obligation (cf. art. 60 of the Fourth Geneva Convention). However, such external assistance may lead to the de facto fulfilment of the obligation. It seems to us that this issue has now been resolved and we do not think that there is a basis for any additional relief from the court.

Food

19. According to the claim of counsel for the petitioners, when the military activity began, the army imposed a full curfew and sealed off some neighbourhoods in Rafah. These are lifted and imposed intermittently, depending upon the area where combat is taking place at any given time. In the neighbourhood of Tel A-Sultan, continuous combat has been taking place since the morning of 18 May 2004. Because of the curfew, the residents of the neighbourhood have been cut off from the outside world for three days. They suffer from a shortage of water (see para. 14 supra), medicine (see para. 17 supra), and food. In four neighbourhoods of Rafah, there is no milk nor any basic food products. Contact with other neighbourhoods — which would solve the problem — is prevented by the army. Moreover, no food is being brought in from outside the area. The petitioners request that we order the respondent to allow the supply of food to the residents of the neighbourhood of Tel A-Sultan. In his response, Col. Mordechai said that the usual procedure is that, when a curfew is imposed, a restocking of food should be allowed within 72 hours from the beginning of the curfew. In the case before us, the army allowed food trucks prepared by the Red Cross to be brought into the area within 48 hours. Food stations were designated in various parts of the neighbourhoods, and food was distributed to the residents. In this regard, the IDF is in contact with the mayor of Rafah and with the ministries of the Palestinian Authority. During the day, additional food trucks will be allowed to enter. Every request from an outside source to supply food will be approved and allowed. The same applies to milk. In Col. Mordechai’s opinion, there is currently no shortage of food. He emphasized in this regard that, even before the operation, UNRWA was allowed to fill its storage facilities with food.

20. On the normative level, the rule is that the military commander who is holding an area under belligerent occupation must provide the food requirements of the local inhabitants under his control. Carrying out this obligation in practice is naturally dependent on the conditions of the fighting. However, it is prohibited for the fighting to result in the starvation of local inhabitants under the control of the army (see Almadani v. Minister of Defence [5], at p. 36 {53-54}). On the practical level, it seems to us that the food problem has been resolved, but we should repeat that, like the problem of medicines, the question of food for the civilian population must be part of the advance planning for a military operation. The full responsibility for this issue lies with the IDF. The IDF may, of course, be assisted by international organizations, such as the Red Cross and UNRWA, but the actions of these do not discharge it, since it has effective control of the area, of its basic obligation to the civilian population under its control (cf. art. 60 of the Fourth Geneva Convention).

Evacuation of the wounded

21. The petitioners claim that, when the military operation began, the road from Rafah to Khan Younis was blocked in both directions. Ambulances that evacuated the wounded from Rafah to Khan Younis on that morning did not succeed in returning to Rafah. Therefore, wounded persons remained in the A-Najar hospital. That hospital is not equipped, nor is it sufficiently advanced, to treat the dozens of wounded coming to it. Because of the blocking of the road, the lives of many wounded are in danger. Moreover, when the army allows the evacuation of the wounded from A-Najar hospital in Rafah to hospitals outside Rafah, it allows the evacuation only on the condition that the name and identity number of the wounded person and the licence number of the ambulance which is supposed to evacuate him are provided. While the demand for giving the licence number of the ambulance can be satisfied, albeit with difficulty, the demand that the name and identity number of the wounded person are provided is an impossible demand. The reason for this is that many of the wounded are not conscious and their identity is not known. Because of this demand, ambulances are unable to come to evacuate wounded persons whose identities are not known. Moreover, the entry of additional ambulances into the A-Sultan neighbourhood is prevented because of digging that the IDF is carrying out in the area. In one case, shots were even fired on an ambulance of the ‘Red Crescent.’ The petitioners request that we order the IDF to refrain from harming or threatening the medical teams or civilians involved in the evacuation of the wounded or the dead. They also request that medical teams and Palestinian ambulances are allowed to reach the wounded in Rafah in order to evacuate them to hospitals. Finally, they request that we order the respondent to allow the transfer of the wounded in ambulances from the hospital in Rafah to other hospitals in the Gaza Strip without any need for prior arrangement, including giving details of the identity of the wounded.

22. In his written response, Col. Y. Mordechai said that the IDF allows the entry of ambulances and medical teams into Rafah in order to evacuate the dead and wounded. This is coordinated with Red Cross and Red Crescent officials, the Palestinian Civilian Liaison office, various UNRWA officials, various Palestinian officials, and Israeli human rights organizations that have contacted the humanitarian centre. As a rule, IDF forces do not prevent the entrance of ambulances into the Rafah area or the passage of ambulances from the Rafah area to the Khan Younis area. With regard to the demand for the licence plate number of the ambulances and the identity of the wounded, Col. Mordechai said, in his written response, that these demands are based on a desire to ensure that it is indeed wounded persons that are being transferred by Palestinian medical teams, and that it is indeed an ambulance and not vehicles that are being used for another purpose. Experience has shown that Palestinian terrorists have used even ambulances for terrorist activities, including the transport of armed Palestinians and the smuggling of weapons from one area to another. In his oral response, Col. Y. Mordechai added that a DCO officer is attached to each battalion. One of his main duties is to ensure the evacuation of the wounded in coordination with the ambulance team. During the operation, more than eighty ambulances passed from the northern part of the Gaza Strip to Rafah. The IDF allows the passage of every ambulance, provided that it is coordinated with the army. The search of the ambulance — in case it contains prohibited military equipment that is being transported from one place to another — is completed within minutes. With regard to the evacuation of the wounded, this is not made conditional on providing the names and identity numbers. Even someone whose name and identity is unknown is evacuated, but if it is possible to obtain the name and identity number, the information is requested and received. Without regard to the evacuation of the wounded to somewhere outside Rafah, Col. Mordechai says that more than 40 ambulances have left Rafah, heading north. Every ambulance requesting to leave is permitted to do so. All that is required is coordination with regard to the route. With regard to the shooting on an ambulance, it was stressed before us that the shooting was unintentional. There are clear orders that shooting at ambulances is prohibited. ‘Ambulances are out of bounds’ — so Col. Mordechai told us. Col. Mordechai informed us that dozens of ambulances have passed without being harmed. It is to be regretted if even a single exception occurred. Wireless contact exists between ambulance drivers and officers of the DCO, by which proper coordination between the forces moving in the field and ambulances is maintained. When the passage of an ambulance is prevented by earth on the road, everything is done — after coordination — so that a tractor is brought to that place to remove the earth.

23. There is no dispute regarding the normative framework. The army must do everything possible, subject to the state of the fighting, to allow the evacuation of local inhabitants that were wounded in the fighting. In this respect, it was held by this court, per Justice Dorner, more than two years ago:

‘… our combat forces are required to abide by the rules of humanitarian law regarding the treatment of the wounded, the sick and dead bodies. The abuse committed by medical teams, hospitals and ambulances has made it necessary for the IDF to act in order to prevent such activities, but it does not, in itself, justify a sweeping violation of humanitarian rules. Indeed, this is the declared position of the State. This position is required not only by international law, on which the petitioners are relying, but also by the values of the State of Israel as a Jewish and democratic state’ (HCJ 2936/02 Physicians for Human Rights v. IDF Commander in West Bank [11], at pp. 4-5 {37}).

            In another case, Justice Dorner said:

‘… The rules of international law provide protection for medical facilities and personnel against attack by the combat forces… it is forbidden, in any circumstances, to attack mobile or stationary medical facilities of the medical service, i.e., hospitals, medical storage facilities, evacuation points for the sick and wounded, ambulances, and so forth…

However, the medical team is entitled to full protection only when it is involved exclusively in missions for the search, collection, transport and treatment of the sick and wounded, etc.…

… The protection of medical establishments shall cease if they are being used “for purposes other than their humanitarian functions, for carrying out acts that harm the enemy,” on condition that “advance warning was given, stipulating, in all appropriate cases, a fair deadline and the warning was not heeded” ’ (HCJ 2117/02 Physicians for Human Rights v. IDF Commander in West Bank [12], at pp. 28-29).

It appears to us that the passage of ambulances to and from Rafah took place properly. This was made possible, inter alia, by the contact between the IDF — through the officers of the DCO — and the ambulance drivers. This contact is proper, and it worked properly. Also the movement of ambulances to and from the area was unrestricted. The demand of the IDF regarding the licence plate numbers of ambulances is reasonable. It is correct not to make the transfer of the wounded conditional upon giving their names and identity numbers, but we see nothing wrong in the attempt to receive this information when it is available, provided that obtaining this information is not made a condition for transporting them outside the combat area and does not cause an unreasonable delay in the transport. The single case of shooting on an ambulance was an exception. We are persuaded that in this respect the orders prohibiting such activity are clear and unequivocal. It seems to us, therefore, that in this regard the petition has been satisfied.

Burying the dead

24. Counsel for the petitioners said that the A-Najar Hospital in Rafah has 37 bodies of inhabitants who were killed in the course of the IDF’s operations. Because of the restrictions imposed by the army, it is impossible to bury them. In his response before us, Col. Mordechai said that, in so far as the army is concerned, there is nothing to prevent the dead being buried in the cemeteries. These are located, to the best of his knowledge, outside the neighbourhood of Tel A-Sultan and therefore the funerals can be carried out today. In her response, counsel for the petitioners said that the funerals had not taken place because the army is surrounding the neighbourhood of Tel A-Sultan, and it is not possible for the relatives of the dead to participate in the funerals. Col. Mordechai admitted this to be true.

25. This response did not satisfy us. We said that a solution to this problem must be found quickly. Thus, for example, we asked why all or some of the relatives are not being allowed to participate in the funerals. Col. Mordechai promised us an answer to this question. In an updated statement we received on 23 May 2004, after the pleadings were concluded, we were notified by counsel for the respondent, on behalf of Col. Mordechai, that the respondent decided (on 21 May 2004) to allow several family members of each of the dead to leave the Tel A-Sultan neighbourhood in order to hold the funerals. The proposal was rejected by the Palestinian authorities. That statement also said that on that same day (21 May 2004) the respondent was prepared to allow, as a good will gesture, two vehicles from each family to leave the area of Tel A-Sultan in order to participate in their relatives’ funerals. This proposal was also rejected by the Palestinians. On Saturday (22 May 2004) the respondent was prepared to allow, as a good will gesture and in response to a request by the Red Cross, the family members of each of the dead to leave the neighbourhood in order to take part in the funeral ceremonies, without any limit on the number, provided that the funerals should not be conducted at the same time, but one after the other. The Palestinians rejected this proposal as well. On Sunday (23 May 2004) the respondent announced that he was prepared, as a good will gesture and in coordination with the Palestinian Authority, to allow several buses to leave the neighbourhood in order to allow family members to take part in their relatives’ funerals. To the best of the respondent’s knowledge, the Palestinians began organizing the buses needed to transport the family members from the neighbourhood of Tel A-Sultan for the funerals. A further statement from the respondent (on 24 May 2004) told us that the attempt (on 23 May 2004) to transport family members from the neighbourhood on organized buses for the funerals was unsuccessful because of  the opposition of the Palestinians. The respondent added that on that day (24 May 2004), after IDF troops left the Tel A-Sultan neighbourhood, 22 funerals took place, and there was nothing to prevent the participation of family members living in the neighbourhood of Tel A-Sultan, as traffic between the neighbourhood and the area where the funerals took place was not held up by the IDF.

26. In their response (which was received on 24 May 2004), counsel for the petitioners said that, after making enquiries with the mayor of Rafah, it became clear that the residents in Rafah did indeed refuse the IDF’s proposals, which significantly limited the participation of the families in the funerals of their relatives. The residents preferred holding the funerals after the siege on the neighbourhoods was lifted, in order to ensure that the prayer for the dead would be recited and that a mourners’ tent would be erected for receiving condolences, as Islamic law mandates. We were further told that the mayor of Rafah announced that, in view of the end of the curfew on the neighbourhood of Tel A-Sultan, the inhabitants of Rafah are organizing a mass funeral for the 23 dead in Rafah. The funeral will take place in the afternoon and is expected to continue until the late afternoon because of the large number of the dead.

27. The problem of burying the dead has been resolved. Nevertheless, there are lessons to learn from the incident. The premise is that the basic principle enshrined in art. 27 of the Fourth Geneva Convention, according to which the dignity of the local inhabitants must be protected, applies not only to the local inhabitants who are alive, but also to the dead (cf. art. 130 of the Fourth Geneva Convention; see Pictet, Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, at p. 506; see also HCJ 3436/02 Custodia Internazionale di Terra Santa v. Government of Israel [13], at p. 25). Human dignity is the dignity of the living and the dignity of the dead (with regard to Israeli law, see: CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [14]; HCJFH 3299/93 Wechselbaum v. Minister of Defence [15]; CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [16]). ‘… The protection of the dead and their dignity is like the protection of the living and their dignity…’ (per Justice J. Türkel in HCJ 66/81 Inspector-General of Police v. Ramla Magistrates Court Judge Mr Baizer [17], at p. 353). It is the duty of the military commander to locate the bodies of the dead (see HCJ 3117/02 Centre for Defence of the Individual v. Minister of Defence [18], at p. 18). After bodies are found, he is obliged to ensure a dignified burial is held. In Barakeh v. Minister of Defence [6], which considered the duty of the military commander with regard to the bodies of persons killed in military operations, we said:

‘The basic premise is that, in the circumstances of the case, the responsibility for locating, identifying, evacuating and burying the dead rests with the respondents. This is their obligation under international law. The respondents accept this position, and they act accordingly…

…

… The location, identification and burial of the dead are very important humanitarian acts. They derive from respect for the dead — respect for all dead. They are fundamental to our being a state whose values are Jewish and democratic. The respondents declared that they are acting in accordance with this approach, and their approach seems correct to us…

… in the humanitarian sphere, it is usually possible to reach an understanding and an arrangement. Respect for the dead is important to us all, for man was created in the image of God. All the parties wish to finish the procedure of locating, identifying and burying the dead as soon as possible. The respondents are prepared to allow the participation of the Red Cross and, during the identification stage after the evacuation, also local authorities (subject to the specific decision of the military commander). In locating the bodies, everyone agrees that burials should be carried out with respect, in accordance with religious custom and as quickly as possible’ (ibid., at pp. 15-16 {43-45}).

            The army tried to act in accordance with these principles in the case before us. The dead were identified and transferred to A-Najar Hospital. During all these stages, the Red Cross and the Red Crescent were involved. The problem that arose in the case before us is the problem of burial. The respondent was naturally prepared to bury the dead, but he thought that when he transferred the bodies to A- Najar Hospital he had discharged his duty. This was not the case. The duty of the respondent is to ensure a dignified burial for the bodies. In this regard, he must speak with the local authorities, to the extent that they are functioning, and find dignified ways to carry out this duty. As is clear from the information presented to us, the main difficulty that presented itself was with regard to the participation of the relatives of the dead. This matter was within the control of the respondent, whose forces controlled all the entrances to the neighbourhood of Tel A-Sultan, and it was naturally conditional upon the security considerations. Prima facie it would appear that the proposals which he made in the end could have been made at an earlier stage. The changing position of the respondent, as it appears from the response of the State Attorney’s Office, implies that the matter was not originally taken into account, and the solutions that were proposed were improvisations made up on the spur of the moment. This should not happen. Preparations for dealing with this matter should have been made in advance. A clear procedure should be adopted with regard to the various steps that should be followed in this matter. Naturally, if in the final analysis the bodies are in a hospital and their relatives refuse to bury them, they should not be forced to do so. Nonetheless, everything should be done in order to reach an agreement on this matter.

Shelling on a procession    

28. The petitioners claim that on Wednesday, 19 May 2004, thousands of Palestinians from Rafah participated in a quiet and non-violent procession. They marched in the direction of the neighbourhood of Tel A-Sultan. None of the participants were armed or masked. The marchers included men and women, children and the elderly. Many of the marchers carried food and water, which they intended to bring to the residents of Tel A-Sultan, which had at that time been completely cut off from all outside contact for three days. While they were marching, three or four tank shells and two helicopter missiles were fired at them. According to reports from the participants in the procession, shots were fired also from the direction of the Tel Al-Zuareb observation post, which is an observation post manned by the IDF. The shooting at the crowd resulted in the deaths of eight civilians. About half the dead were minors. The petitioners request that we order an investigation by the Military Police Investigations Department. They also request that we order the respondent to issue an unequivocal order absolutely forbidding the shooting or shelling of civilian gatherings, even if there are armed men among them, if they do not pose an immediate danger to life.

29. Counsel for the respondent told us that an initial investigation was conducted immediately. It found that because of a mishap, a shell was fired at an abandoned building, and eight Palestinians were killed by shrapnel. One of these was an armed activist of the Islamic Jihad. The other seven victims were completely innocent. In this regard it was emphasized that there are considerable amounts of weapons in Rafah, including armour-piercing weapons. It was also emphasized that, in the past, terrorists have made many attempted to use civilians to attack the IDF. It was also feared that the protesters would climb onto the armoured vehicles with soldiers inside them. The procession took place in the middle of a war zone. There were armed elements among the marchers. In an initial attempt to speak with the marchers, an attempt was made to stop the procession. The attempt failed. Afterwards, deterrents were used. These also failed and the procession continued on its way. In these circumstances, it was then decided to fire a hollow shell at an abandoned building. As stated, the full investigation has not yet been completed. When it is completed, all the material will be passed on to the Chief Military Attorney, who will make a decision on the matter. The respondent further said in his written response that the rules for opening fire in effect in the IDF, including with regard to dealing with civilian gatherings, were formulated on the basis of the ethical and legal outlook of preventing harm to the innocent, in so far as possible. Nevertheless, he reiterated that this was a situation of active warfare and danger to our forces in an area densely populated with civilians, where those persons fighting against the army do not separate themselves from the civilian population, but hide within it. They deliberately use the population as a human shield, contrary to the basic rules of war, which amounts to a war crime.

30. The investigation of this tragic event has not yet been completed. All the material will be sent to the Chief Military Attorney. In these circumstances, there is no basis, at this stage, for any action on our part. The petitioners must wait for the results of the investigation and the decision of the Chief Military Attorney. It may be assumed that lessons will be learned, and if there is a need for changing the rules that are given to the army, that will be done. At this stage, in the absence of a factual basis, we can only repeat the obvious, that the army must employ all possible caution in order to avoid harming the civilian population, including one that is protesting against it. The necessary precautions are naturally a function of the circumstances, including the dangers facing civilians on the one hand and the army on the other (cf. CA 5604/94 Hemed v. State of Israel [19]).

The requested remedies

31. The petitioners set out in their petition a list of seven reliefs that they requested from us (see para. 4 supra). We have discussed six of the seven reliefs, with regard to the specific issues that the petitioners raised (see paras. 14 (water), 15 (electricity), 16 (medical equipment and medicines), 18 (food), 20 (evacuating the wounded), 27 (investigating the shooting that hit the procession)). This leaves the final relief. This is the petitioners’ request that we order respondent to allow the entry of a delegation of three doctors on behalf of the first petitioner (Physicians for Human Rights) into hospitals in the Gaza Strip, in order to assess the medical needs there, for the purpose of bringing in teams of the appropriate medical personnel and medical equipment.

32. In his written response, Col. Y. Mordechai said that any delegation of doctors from the first petitioner or any other authorized body may enter the area and visit the hospitals. The sole condition that the respondent made is that there are no Israelis among the visiting doctors. This is because of the fear that they may be harmed or taken hostage, an occurrence that will very seriously complicate the security situation. In this context, he said that there is already a team from the International Red Cross in the area, and that the head of the International Red Cross in Israel is in direct contact with the IDF. Within the framework of oral arguments, counsel for the respondent added that there is nothing to prevent a visit by doctors who are not Israelis but who work in Israeli hospitals. Moreover, there is nothing to prevent doctors from hospitals in Judea and Samaria, or hospitals in the Gaza Strip, from visiting and examining the situation. These proposals did not satisfy the petitioners, who insisted that Israeli doctors should be allowed to enter hospitals in the Gaza Strip.

33. We found nothing wrong with the respondent’s position in this matter. We are persuaded that the consideration underlying the respondent’s position is solely the security factor, and that he has no other non-security reason. Indeed, concerns for the welfare of Israelis who enter the Gaza Strip in general, and the war zone in particular, are very real. Even during periods when there was no military activity taking place the respondent acted in accordance with a similar consideration, and his reasoning was found to be lawful by the court. This was the case regarding the entry of Knesset members into the Gaza Strip (see HCJ 9293/01 Barakeh v. Minister of Defence [20]). This was also the case with regard to doctors from the first petitioner entering the Gaza Strip (see HCJ 3022/02 Physicians for Human Rights v. IDF Commander in Gaza Strip [21]). Israel has a duty to protect its citizens. It does not discharge this duty merely because some citizens are prepared to ‘take the risk on themselves.’ This ‘taking the risk’ is of no significance, because the state remains responsible for the safety of its citizens, and it must do everything in order to return them safely to Israel. Allowing the entry of Israeli doctors into a war zone in Gaza creates a real danger to the safety of the doctors and to the interests of the State. There is no reason to place the State in this danger. Beyond what is necessary, it should be noted that prima facie there should be no difficulty in the first petitioner finding three doctors who are not Israelis — whether in Gaza itself, in Judea and Samaria, in Israel or from the rest of the world — who will be prepared to carry out the required inspection on its behalf. In this matter the petition should be denied.

What of the future?

34. According to the humanitarian rules of international law, military activity has the following two requirements: first, that the rules of conduct should be taught to all combat soldiers and internalized by them, from the Chief of General Staff down to the private (see Physicians for Human Rights v. IDF Commander in West Bank [11], at p. 5 {37}); second, that institutional arrangements are created to allow the implementation of these rules and putting them into practice during combat. An examination of the conduct of the army while fighting in Rafah, as it appears from the petition before us — and we only have what has been presented before us — indicates significant progress as compared with the position two years ago, as it appeared to us from the various petitions (see Barakeh v. Minister of Defence [6]; Physicians for Human Rights v. IDF Commander in West Bank [11], etc.). This is the case regarding the internalization of the obligation to ensure water, medical equipment, medicines, food, evacuation of the wounded, and the burial of the dead. This is also the case regarding the preparedness of the army and the creation of arrangements for realizing the humanitarian obligations. The establishment of the humanitarian centre and the District Coordination Office, as well as the assignment of a liaison officer from the Coordination Office to each battalion have greatly facilitated the implementation of humanitarian principles.

35. Within the framework of the internalization of humanitarian laws, it should be emphasized that the duty of the military commander is not restricted merely to preventing the army from harming the lives and dignity of the local residents (the ‘negative’ duty: see para. 11 supra). He also has a ‘positive’ duty (ibid.). He must protect the lives and dignity of the local residents, all of which subject to the restrictions of time and place. Thus, for example, with regard to the burial of the local residents, the military commander was satisfied when the bodies were transferred to A-Najar Hospital, but this was not enough. He is obliged to do his utmost to ensure that the bodies are brought to a dignified burial according to local custom. The same is true with regard to advance preparations in order to ensure there are sufficient supplies of food and water in the area. Damage to the water supply is something that should be foreseen from the outset, and if it cannot be avoided, a solution to this problem must be arranged. Sufficient supplies of medicines, medical equipment and food should be prepared in advance. Harm to local inhabitants is to be expected and if, despite every effort to limit this, in the end there are casualties among the local inhabitants, preparations should be made for this from the outset. The respondent should not rely solely on international and Israeli aid organizations, even though their aid is important. The recognition that the basic obligation rests with the military commander must be internalized, and it is his job to carry out various measures from the outset so that he can fulfil his duty in times of war.

36. Within the framework of the institutional arrangements, additional measures should be adopted so that the arrangements that were created (see para. 3 supra) will be more effective. We were told that those who called the humanitarian centre waited for many hours. Col. Y. Mordechai said to us several times that matters should have been referred to him, and not to the humanitarian centre. The lack of information led, on several occasions, to inefficiency in aid provided by third parties. Thus, for example, a vehicle of the first petitioner laden with medical equipment and medicines waited at Erez Crossing when the entry point was at Karni Crossing. Moreover, even at Karni Crossing its entry was not allowed, because there were Israeli doctors in the vehicle, and the army was only prepared to allow the entry of doctors who were not Israelis. These issues and others need to be addressed. It is possible that the humanitarian centre needs to be enlarged, and there needs to be more effective communication between it and the District Coordination Office and the Coordination Office’s special liaison officers attached to the combat battalions. It is possible that there is a need — with regard to international and Israeli organizations whose humanitarian involvement is foreseen — to create a direct link between these and the officers of the DCO, thereby bypassing the humanitarian centre. It is possible that there is a need to take other measures. This matter is for the respondent to address when he studies the lessons to be learned from the current events.

37. Against this background, when the arguments in the petition were completed, we wished to ensure that the various military frameworks in the area solve not only the problems raised by the petitioners, but also new problems that, in the nature of things, will arise tomorrow. In this respect, it was agreed that Col. Mordechai would appoint a senior officer who will be in direct contact with the organizations of the petitioners. This is the least that could have been done around the time of the events themselves. The main steps that should be taken will come after studying the lessons at the end of the events.

38. Before we conclude, we wish to thank counsel for the petitioners, Advocate Fatima Al-Aju, who presented the position of the petitioners clearly and responsibly, and counsel for the respondent, Advocates Anar Helman and Yuval Roitman, who within a very short time provided us with the most comprehensive and up-to-date information possible. We also wish to thank Col. Y. Mordechai, who did well in explaining to us the details of the area and the activities of the respondent, and who did all he could to translate humanitarian norms into practice.

The result is that six of the seven reliefs that were requested by the petitioners have been satisfied. The petitioners are not entitled to the seventh relief — the entry of Israeli doctors on behalf of the first petitioner into the area in general and A-Najar Hospital in particular —  because of the danger that the doctors will be taken hostage. In this regard, the respondent’s proposal that doctors who are not Israeli (whether from the Gaza Strip, from Judea and Samaria, from Israel, or from anywhere else in the world), will be allowed to enter the area —  which was rejected by the petitioners — must suffice.

Justice J. Türkel

I agree.