Laws of war

 

HCJ 2117/02

 

Physicians for Human Rights

v.

The Commander of the IDF Forces in the West Bank

The Commander of the IDF Forces in Gaza

 

The Supreme Court sitting as the High Court of Justice

[April 28, 2002]

Before Justices D. Dorner, D.  Beinisch, and E. Levy

 

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

 

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioner requested explanations from the State regarding accounts of IDF fire on ambulances and injuries caused to the medical teams traveling in them. Petitioners requested that respondents be ordered to cease such activities. The State responded that these incidents were the result of the Palestinian’s use of ambulances for the transport of explosives. Even so, the State held firm in its obligation to fulfill its duties under international law. The State asserted that combat forces had been instructed to act in accordance with the rules of international law.

 

Held: The Supreme Court held that international law provides protection for medical stations and personnel against attack by combat forces. Article 19 of the First Geneva Convention forbids, under all circumstances, attack of stations and mobile medical units of the “Medical Service,” that is to say, hospitals, medical warehouses, evacuation points for the wounded and sick, and ambulances. However, the “Medical Service” has the right to full protection only when it is exclusively engaged in the search, collection, transport and treatment of the wounded or sick. Moreover, Article 21 of the First Geneva Convention provides that the protection of medical establishments shall cease if they are being “used to commit, outside their humanitarian duties, acts harmful to the enemy”, on condition that “a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.” 

 

Treaties Cited:

The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, §§ 19, 21, 24, 26

 

Israeli Supreme Court Cases Cited:

[1]HCJ 2936/02 Physicians for Human Rights v. The Commander of the IDF Forces in the West Bank, IsrSC 56(3) 3

 

Israeli Books Cited:

[2]Y. Dinstein, The Laws of War (1983)

 

Motion denied.

 

For the petitioners—Andara Rosenthal

For the respondent—Shai Nitzan

 

 

Judgment

Justice D. Dorner

 

1. The petition before us was filed by the society known as Physicians for Human Rights, on March 8, 2002, at the start of the IDF combat operations in areas of the Palestinian Authority. The petition was directed against specific events during which IDF soldiers allegedly fired on ambulances of the Red Crescent, and wounded medical teams traveling in them. We were asked to order the State to explain these shootings, and to order that they be stopped.

 

During the oral arguments of March 14, 2002, we asked petitioner to substantiate its claims with affidavits that would reference specific events, and also asked the State to investigate petitioner’s claims and respond to them. Subsequently, during the height of combat operations, two identical petitions were filed, one by petitioner. See HCJ 2936/02 and HCJ 2941/02 [1]. These petitions were heard immediately after they were submitted, and we handed down our decisions on the same day.

 

In the meantime, petitioner submitted the required affidavits. As a result of the relatively short time at its disposal, and especially due to the ongoing combat activities, which made a full investigation difficult, the State responded only partially to the content of petitioner’s affidavits.  The State obligated itself to continue its inquiry. Substantively, the State based its arguments on the decision of this Court in HCJ 2936/02, and restated its position in that case, in which it agreed that the situation regarding the medical treatment of the wounded was not simple, and that, as stated in one of the affidavits, shots had even been fired at a Palestinian ambulance. However, according to the State, this was a direct result of the behavior of Palestinians who had, on a number of occasions, transported explosives in ambulances. Nonetheless, the State reemphasized the obligation of the IDF to uphold the rules of international law, as required by law, morality, and even by utilitarian considerations. The State also declared that the combat forces had been, and were being, instructed to act according to those rules.

 

The petition before us is prospective; it deals with the future. We were not asked to grant relief regarding specific events. The incidents mentioned in the petition were only meant to provide a factual picture. The State obligated itself to complete its investigations regarding those events, and the petitioner reserved the right to petition this Court again, if not satisfied by the results of this investigation.

 

As to the crux of the matter, international law provides protection for medical stations and personnel against attack by combat forces. Article 19 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of Aug. 12, 1949 [hereinafter The First Geneva Convention] forbids, under all circumstances, attack of stations and mobile medical units of the “Medical Service,” that is to say, hospitals, medical warehouses, evacuation points for the wounded and sick, and ambulances. See Y. Dinstein, The Law of War 144-45 (1983) [2].

 

However, the “Medical Service” has the right to full protection only when it is exclusively engaged in the search, collection, transport and treatment of the wounded or sick. Note the provisions of Articles 24 of the First Geneva Convention as well as the provisions of article 26, which expands this protection to include the Red Cross and similar voluntary aid societies. See also Dinstein, [2] at 153.

 

Moreover, Article 21 of the First Geneva Convention provides that the protection of medical establishments shall cease if they are being “used to commit, outside their humanitarian duties, acts harmful to the enemy”, on condition that “a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.”  See also Dinstein, [2] at 145.

 

Against this legal background, we recall our words from our decision in HCJ 2936/02 [1]:

 

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

 

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

 

The instructions which are to be given to soldiers should deal with, among other things, the reasonable and fair warnings which should be given to medical teams. These guidelines should be subject to the circumstances, and should be carried out by the IDF in a way that balances the threat of Palestinian fighters camouflaged as medical teams against the legal and moral obligation to uphold humanitarian rules regarding the treatment of the sick and wounded.  Such a balance should take into consideration, among other things, the imminence and severity of any threat.

 

So we decided in HCJ 2936/02 [1] and so we decide, once again, in this petition.

 

April 28, 2002

 

 

HCJ 8990/02

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

v.

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

 

The Supreme Court Sitting as the High Court of Justice

[April 27, 2003]

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

 

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

 

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

 

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

 

Treaties Cited

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

 

Israeli Supreme Court cases cited:

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

 

Petition denied.

 

For the petitioners—Y. Argon, Y. Zur

For the respondent—Y. Gensin

 

 

JUDGMENT

Justice E. Mazza

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

 

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

 

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

 

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

 

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

 

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

 

Petition denied.

 

 

 

 

 

 

 

 

 

 

 

 

 

HCJ 10223/02

1.  Tamara Fish-Lipschitz

2.  Miriam Gorov

v.

1.  The Attorney-General

 

 

The Supreme Court Sitting as the High Court of Justice

[April 9, 2003]

Before President A. Barak, and Justices D. Dorner, Y. Turkel

 

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

 

Petition denied.

 

For the petitioners—Nitzana Darshan-Leitner

For the respondent—Yochi Gensin

 

 

JUDGMENT

President A. Barak

 

1.  On February 25, 2002, the late Mr. Avraham Fish was driving in his car.  His wife, petitioner no. 1, and the late Mr. Aharon Gorov, the husband of petitioner no. 2, were passengers in the car.  Adjacent to the community of Nokdim, Mr. Fish's car was ambushed, and shots were fired at the car.  Mr. Fish and Mr. Gorov were killed by the shots.  Petitioner no. 1, who was pregnant, was wounded.

 

2.  On March 29, 2002, the Israeli government decided to carry out military operations in the area as part of “Operation Protective Wall.”  The goal of these operations was to prevent terrorist activities in Israel and in the area. In the context of these operations, soldiers of the Israel Defense Force entered the city of Bethlehem. After their entrance into the city, about 30-40 armed Palestinians broke into the Church of the Nativity and fortified themselves in the basilica of the Church.  Among these Palestinians were Ibrahim Mussah, Aslam Abyaat, Abdul Daud Muhammad Abdul Kadar and Anan Muhammad Hamis Tanaga [hereinafter the wanted parties].  The Palestinians, including the wanted parties, shut themselves in the church for a long period of time, during which were citizens, priests and religious figures were also in the church.  During this period, intensive negotiations were taking place to find a peaceful solution which would allow the citizens and religious figures to leave the area and allow for the exit of the wanted parties from the church.  This was to be done without forceful entry into the church, with all the international and religious implications entailed in such an entry.  Ultimately, under international patronage and mediation, an agreement was reached.  According to the agreement, Palestinians were to leave the area unarmed, while some of them would be moved to Gaza and the others, including the wanted parties, would be moved to various foreign States without having been arrested by the State of Israel.   

 

3.  On 3.12.2002, the petitioners approached this Court.  Their petition claims that in an investigation made by the IDF after the attack during which the petitioners lost their loved ones, it was found that the wanted parties were responsible for the attack and executed it.  The petitioners’ main claim is that despite the agreement to release the wanted parties, after they had been moved to the foreign countries who had agreed to accept them, the State was obligated to demand that they be extradited.  This is not only due to the severity of their actions against the deceased and other wounded parties, but also for the purpose of upholding rule of law and equality before the law.  Petitioners assert that the wanted parties were not pardoned and their status as wanted persons did not change as a result of the agreement.

 

4.  The respondent requested that we deny the petition.  The respondent asserted, at the outset, that with regard to the wanted parties: regarding Anan Muhammad Hamis Tanaga, security forces have found no indication which ties him to the execution of the terrorist attack attributed to him; regarding  Abdallah Daud Muhammad Al Kadar, security forces have no evidence upon which they may found criminal charges relative to his involvement in the terrorist attack which has been attributed to him; regarding Ibrahim Mussah Aslam Abyaat, there does exist evidence which connects him to the execution of the terrorist attack being discussed.  However, due to agreement, under which the wanted parties left the Church of the Nativity, there is no basis to request that he be extradited, or the extradition of the other wanted parties.  In his response, the respondent elaborated upon the background of the agreement which was reached with regard to the evacuation of the Palestinians – which included the wanted parties – from the church.  The agreement which allowed the wanted parties to leave the church was reached under international patronage and with the intervention of the Pope.  The agreement was a realistic necessity due to the significance of the continuation of the siege on the church and the need to find a solution which would prevent severe damage.  The option which was chosen – the banishment of the wanted parties, and thus their exile - was meticulously investigated and found to be appropriate, especially due to its harsh significance for the wanted parties from a penal point of view, and its deterrent significance for others.  Respondent asserts that this sanction is more severe than imprisonment.  Moreover, the contents of the agreement which was reached are would be in conflict with a request of the State of Israel for the extradition of the wanted parties.  Part of the agreement includes an “understanding” that the wanted parties will not become involved in terrorism in the future and will not return to Israel or the area.  Thus, despite sharing in the sorrow caused to the petitioners in the loss of their loved ones, on this basis, the denial of this petition was requested. 

 

5.  After examining the materials before us and the arguments of the parties, we have come to the conclusion that the petition should be denied.  There is no conflict that the reality which led to the agreement under which the wanted parties left the area of the Church of the Nativity is not humanitarianly, religiously, operationally or nationally simple.  Some manifestations of this difficult reality may be found in proceedings which were held by this Court.  See H.C.J. Custodia Internationala De Tara Santa v. State of Israel IsrSC 56(3) 22; H.C.J. Almondi v. Minister of Defense IsrSC 56(3) 30, 33-34.  The agreement regarding the exit of the wanted parties and the Palestinians was drawn up against this background.   Political and international considerations were weighed, as were long and short term security and deterrence interests, including the severity of the sanction of banishment beyond the boundaries of the State of Israel.  The petitioners are not claiming against the validity of the agreement, but rather principally against the failure to request the extradition of the wanted parties after the agreement’s fulfillment.  However, as may be understood from the respondent’s response, the two are inseparable.  The decision regarding the exit of the Palestinians and the wanted parties is necessarily a decision not to charge them and thus not to request their extradition.   Such was not only decided but also agreed upon under the patronage of international agents who were partners in the agreement.  Under these circumstances, we have found no cause for our intervention in the respondents decision not to begin extradition proceedings against the wanted parties, of which there is no foundation to prosecute two of them in any case.  Compare H.C.J. 5329/97 Kugan v. ??? IsrSC 51(5) 67.  Indeed, the reality in which we live, a reality of terrorism and terrorist attacks, of pain and sorrow, often leads to decisions which demand the balancing of various considerations and choosing from amongst unsatisfying alternatives.  These decisions do not always have the power to comfort the petitioners or others whose worlds have been shattered.  However, so long as these decisions are properly founded, and the balancings are appropriate and in accordance with the law, they do not establish a cause for the intervention of this Court.  Thus, the petition should be denied.

 

Justice D. Dorner

 

I agree.

 

Justice Y.  Turkel

 

I agree.

 

Petition Denied

April 9, 2003

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

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

 

 

 

 

 

CrimFH 7048/97

                                                                    

John Does

v.

Ministry of Defence

 

The Supreme Court Sitting as the Court of Criminal Appeal

[April 12th, 2000]

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

 

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

 

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

 

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

 

Basic law cited:

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

 

Legislation cited:

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

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

 

Regulations cited:

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

 

International treaties and conventions:

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

of War) 1949, articles 34, 147

Third Geneva Convention article 118.

International Convention against the Taking of Hostages, 1979.

 

Israeli Supreme Court cases cited:

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

 

Israeli books cited:

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

 

Israeli articles cited:

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

 

Foreign books cited:

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

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

 

Foreign articles cited:

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

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

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

 

Jewish law sources cited:

Ecclesiastes 1, 6.
Yoma 21 p. A.

 

Other:

International Convention against the Taking of Hostages, 1979.

 

For the petitioner—Tzvi Risch.

For the respondents —Shai Nitzan.

 

JUDGMENT

 

President A. Barak

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

The Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Petitioners’ Arguments

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

The Respondent’s Arguments

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

The Normative Framework

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These words are relevant to our matter as well.

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

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

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

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

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

 

 

Justice T. Or

 

I agree.

 

Justice E. Mazza

 

I agree.

 

Justice I. Zamir

 

I agree.

 

Justice M. Cheshin

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

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

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

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

 

Detention Order

2 (a)

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

 

  (b)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And so it was after this.

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

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

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

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

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

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

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

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

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

Vice President S. Levin

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

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

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

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

Justice Y. Kedmi

Introduction

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

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

President Shamgar:

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

And later on:

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

While as per Justice Tal:

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

And later on:

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

National Security and the Value of Redemption of Prisoners

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

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

The Normative Framework: Detention Authority

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the General to the Specific

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

Justice J. Türkel

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice D. Dorner

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

4 Nisan 5760

April 12, 2000

 

 

Crim. A. 44/52

 

 

 

KASSEM HUSSEIN DIAB

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[December 2, 1959]

Before: Smoira P., Silberg J., and Witkon J.

 

 

 

 

Statutes - Interpretation - Use of marginal note - Criminal Code Ordinance, 1936, s. 53(a) - Nature of civil war - Distinction between civil commotion, civil war and international war - Arab and Jewish hostilities prior to termination of Mandate - Effect of termination of Mandate and invasion by Arab States.

 

            The appellant was charged and convicted under section 53(a) of the Criminal Code Ordinance, 19361), with promoting civil war in that being a resident of Israel, he left the country, enlisted in an Arab "army" and served in it against Israel during the Arab-Israel War. The appellant contended that the acts with which he was charged did not constitute the offence described in the section which refers only to a civil war in the sense of a fight between residents within the State.

           

            Held: That although the war in which the appellant had participated was not a civil war, and he was therefore not guilty of the offence charged., section 53(a) of the Criminal Code Ordinance, 1936, properly interpreted in the light of the marginal note to the section, which note may be used in interpreting mandatory legislation, created the offence of promoting civil war.

 

Israel case referred to:

(1)       Cr. A. 53/49; Weil v. Attorney-General, 1950, 2 P.E. 438.

 

English cases referred to :

(2)       E. v. Hare, (1934) 1 K.B. 354.

(3)       Attorney-General v. Great Eastern Railway Company, (1879), 11 Ch. D. 449.

(4)   In re Woking Urban District Council (Basingstoke Canal) Act, 1911, (1914) 1 Ch. 300.

(5)       Claydon v. Green; Green v. Claydon, (1867-8), L. R. 3 C.P. 511.

(6)       In re Venour's Settled Estates, Venour v. Setton, (1875-6), 2 Ch. D. 522.

(7)       Sutton v. Sutton, (1883), 22 Ch. D. 511.

 

American cases referred to:

(8)       Brown v. Hiatt, 1 Dillon 379.

(9)       Juando v. Taylor, 13F. Cas. No. 7558. Cit. in 67 C.J. 337, note 16(b).

(10)     Underhill v. Hernandez, 18 S Ct. 83; 168 U.S. 250, 42 L. Ed. 456.

(11)     The Amy Warwick, Fed. Cas. No. 341, 64 Fed. Digest 245-246.

(12) Salisbury Hubbard & Co. v. Harnden Express Co., 10 R.I.. 244 cit. in 67 C.J.: 336, note 16(a).

(13)     Mayer v. Reed & Co., 37 Ga. 482, cit. in 67 C.J. 337, note 16(c).

 

E. Toister, for the appellant.

Miriam Ben-Porat, Deputy State Attorney, for the respondent.

 

SILBERG J. The appellant was convicted by the Haifa District Court of an offence under section 58(a) of the Criminal Code Ordinance, 1936, and sentenced to seven years imprisonment. The act with which he was charged, put very shortly, is that at the end of 1948 or the beginning of 1949, while he was an Israel resident, he joined the Arab "Army of Rescue" (Kawkji's Army) as a soldier, at the time when it was stationed and active on Syrian and Lebanese soil, facing the northern frontier of the State of Israel. Counsel for the appellant contests the jurisdiction of the court below, but his main submission on the merits of the case is that the act with which his client is charged, even if it took place, is not an offence within the meaning of the section.

 

            Why is that so ? Because the Mandatory legislator, who bequeathed the section to us, never intended to provide for such a case as this; in section 58(a) he provided only for a civil war, namely, a fight between neighbours, within the State, arising from religious, communal or class hostility and the like, and not for war which comes from outside, in which the opposing sides are fighting each other, not for victories within the State, but for the conquest of the State itself.

           

2. That submission is well worthy of consideration, and the appellant's fate here depends upon the way it is decided. There arise, first of all, questions concerning the construction of statutes, and for the first time in this court we shall have also to consider, to the extent to which it concerns our case, the legal character of the Arab-Israel war.

 

3. First, let us consider the wording of the above-mentioned section 53(a). The section, in the original English, is as follows:

 

Promoting Civil War.

"53.     Any person who :-

 

(a)   Without lawful authority, carries on, or makes preparation for carrying on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by or against any section, race or body of persons in Palestine;

            ………………………………………………………

        is guilty of a felony and is liable to imprisonment for life."

            In place of "Palestine" we must now read "Israel", by virtue of section 15 of the Law and Administration Ordinance, 1948.

           

            In the margin of that subsection, there appear the words "Promoting Civil War" (the words that come after them relate to subsection (b).) The first question that calls for consideration (and it is a great pity that counsel for the parties did not deem it necessary to develop their argument on this point) is this: is it possible to rely on that marginal note, and how far can we surmise from it the meaning of the Statute? Only if and when we have answered that question affirmatively, do we have to examine the meaning of the term "civil war", in order to arrive at the further, and final question, namely, whether or not the present appellant's act amounted to aiding or taking part in a civil war.

           

4. Now this question - the question of the marginal note (or headings generally) as a source for interpreting the intention of the legislator - has been considered countless times in English case-law, and the rule is still a somewhat vague one. The principle laid down is that you cannot be guided by the marginal note; but that is only a formula, more honoured in tile breach than in the observance. On the one hand, it is clear that the note has no preferential status, and the words of the note, whether it be a heading, a sub-heading or a marginal note, cannot contradict or settle what is stated in tile statute itself, for why should we prefer the margin to the text ? On the other hand, there is apparently nothing to prevent relying on the marginal note in order to resolve an ambiguity appearing in the faulty drafting of the statute.

 

            Authority for that - for both parts of the concept - may be found in the words of Avory J. in the case of R. v. Hare (2). There a woman was charged with committing an indecent act on a child of 12, by seducing him into having sexual intercourse with her, and she was brought to trial on a charge according to section 63 of the Offences against the Person Act, 1861. The defence argument was that the heading to sections 61-63 was "Unnatural Offences", a sign that it was intended to refer to sodomy, bestiality and the like, but not to an act of the kind mentioned above. The court rejected the argument, saying :-

           

            "Headings of sections and marginal notes form no part of a statute. They are not voted on or passed by Parliament, but are inserted after the Bill has become law."

 

            Thus far the principle, and immediately comes its application :-

           

            "Headnotes cannot control the plain meaning of the words of the enactment, though they may, in some cases, be looked at in the light of preambles if there is any ambiguity in the meaning of the sections on which they can throw light."

 

                        (Avory J. in Hare's case (2), at pp. 355-356.)

           

            Since in that case there was no ambiguity in the wording of the statute, it being written "Whosoever...", and that includes a woman, the court refused to restrict the criminal provision on account of the heading.

           

            So we may refer to those headings and preambles in order to clarify the ambiguous meaning of the statute, and it may be that the intention of the words in the second passage above quoted was a little wider, it being : that it is permissible in general to make use of all those "accessories", whenever the wording of the statute is a little unclear, and its darkness needs to be dispersed by some extraneous light, by means of a source of construction that is not to be found, to the reader's regret, in the statute itself. If that is the intention of the words, then there is as a rule no great practical value in all those trappings since, generally speaking, the person construing a statute has no need for the heading, except in order to fill in what is lacking in the statute.

 

5. But there is yet a further ground for reducing the scope of Avory J.'s statement and that, too, is likely to restrict the application of the above-stated principle of construction, as will immediately become apparent. Why cannot we learn from the headings, and for what reason do they not constitute part of the statute? It is because those headings "are not voted on or passed" by the legislature. That is the one and only ground, and we find it given as the decisive reason in a number of other judgments. Baggallay L.J. said:-

 

            "I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note. I never knew a marginal note considered by the House of Commons."

 

            (Baggallay L. J., in Attorney-General v. Great Eastern Railway Co. (3), at p. 461.)

           

            In another judgment, we read the following remarks of Phillimore L. J.:-

           

            "I am aware of the general rule of law as to marginal notes, at any rate in public general Acts of Parliament; but that rule is founded, as will be seen on reference to the cases, upon the principle that those notes are inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons. Where, however,...... the marginal notes are mentioned as already existing and established, it may well be that they do form a part of the Act of Parliament. I do not, however, decide the case upon this ground."

 

            (Phillimore L. J., in the Woking Urban District Council (Basingstoke Canal) Act case (4), at p. 899.

           

            Willes J., in the case of Claydon v. Green; Green v. Claydon, 1911 (5), recounts the historical background to the matter, and tells us the following matters of interest, giving us a remarkable insight into the English love of tradition. These are his words, at pp. 521, 522:-

           

"Something has been said about the marginal note to section 4... I wish to say a word upon that subject. It appears from Blackstone's Commentaries..., that, formerly, at one stage of the bill in parliament, it was ordered to be engrossed upon one or more rolls of parchment. That practice seems to have continued down to the session of 1849, when it was discontinued, without however any statute being passed to warrant it... Since that time, the only record of the proceedings of parliament, - the important proceedings of the highest tribunal of the kingdom, - is to be found in the copy printed by the Queen's printer. But I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the act, the marginal notes, and the punctuation, not as forming part of the act, but merely as temporanea espositio. The act, when passed, must be looked at just as if it were still entered upon a roll, which it may be again if parliament should be pleased so to order; in which case it (that is, the statute) would be without these appendages, which though useful as a guide to a hasty inquirer, ought not to be relied upon in construing an act of parliament."

 

            It once happened that Jessel M. R. erred and thought that in his day marginal notes had already begun to appear in the Rolls of Parliament themselves, and for that reason he decided that they ought to be taken into account for the purposes of construing a statute. He said:-

           

            "...the marginal notes of Acts of Parliament now appear on the Rolls of Parliament, and consequently form part of the Acts;"

           

            (See In re Venour's Settled Estates, Venour v. Sellon (6), at p. 525.)

 

            But some years later he noticed his mistake and admitted it publicly from the Bench when he said:-

           

            "The dictum in that case (he is referring to the one cited above) is not strictly correct. I have since ascertained that the practice is so uncertain as to the marginal notes that it cannot be laid down that they are always on the Roll. But the title of the Act is always on the Roll" - thus he ends on a note of consolation.

           

            (See Sutton v. Sutton (7), at p. 51a.)

           

6. We see, therefore, that the whole matter turns on the cardinal question whether or not those headings and "adornments" came to the notice, and obtained the affirmation, of the legislative body - whether or not they received its official stamp of authority. The traditional English view is that the Parliamentary legislator has nothing to do save with what his eyes perceive in the Rolls - that self-same archaic Roll, full of antiquity, that the reader must read rapidly without name or title, without marginal notes and without punctuation - and whatever is not included, or does not have to be included, in this species of document is outside the statute, a kind of unnecessary and irrelevant adjunct of "irresponsible" persons who have no part in the legislative activity of the legislator.

 

7. Hence, in my opinion, only one conclusion, short and simple, falls to be drawn: that all that discussion on the interpretative value of headings has no application whatsoever in the totally different world of the Palestinian legislator. Mandatory Palestine was not particular in observing the separation of powers, and its legislator and administrator were fused together into one personality. Its statutes did not proceed from the chamber of a legislative body, and an electorate and its representatives had no hand in their making. They were composed behind closed doors by a group of professional experts, and were submitted for the signature of the High Commissioner. With the signature of the High Commissioner (after consultation with the "Advisory Council"), the document turned into a statute, and that was the sole official act of legislation. It is fairly safe to assume that the document put forward for signature was not devoid of marginal notes and headings, and so in any event that legislative signature also referred to the marginal notes of the statute. In the actual circumstances of the Mandatory regime there was no ground whatever for distinguishing between sections of the statute, considered and drafted by "responsible" persons, and adornments to the statute inserted, as it were, afterwards by "irresponsible" persons, for both of them were in fact drafted by those same expert officials before they all of them together received their official stamp of authority by the affixing of the High Commissioner's signature.

 

            Consequently, it appears to me that whatever may be the content and scope of the English rule regarding headings, here in Israel, so far as Mandatory legislation is concerned, there is nothing to prevent our receiving "interpretative inspiration" from the wording of the headings in assisting us to determine the meaning of the statute, so long as they do not contradict what is expressly stated in the body of the statute. If there is any contradiction, express or even implied, between them, then without question the statute is to be preferred, since in that event it is clear that the heading - the summary - is erroneous, and it was for that reason, so it seems to me, that Cheshin J. refused to rely on the marginal note in Weil v. Attorney-General (1).

 

            Support for this concept is to be found in an express provision in a statute. I have in mind the Trades and Industries (Regulation) (Amendment) Ordinance, 1939, Section 2 of that Ordinance alters the "Long Title" of the original Trades and Industries Ordinance, and makes it even longer by adding a number of words. Now, consider this matter carefully: if no value is to be attached to the heading, and we are not entitled to be guided by it, what would have induced the legislator to go to all that troubled The result is : here in Israel, as regards Mandatory legislation, there is value in the headings, and under certain conditions they may help us, to a lesser or greater extent, to understand the correct meaning of a statute.

           

8. Bearing these matters in mind, I pass to the provisions of the section in question: section 53(a) of the Criminal Code Ordinance, 1936. Briefly put, its purpose is the imposing of punishment for the carrying on of, or aiding in, a war or warlike acts against a section of the population of Palestine (now Israel). Now if the language of the section itself is somewhat vague and it may be interpreted in different ways, with the help of the marginal note any doubt in the matter is dispelled; it tells us frankly and distinctly that the reference is to civil war. The question is, therefore, what is the precise meaning of that term, and in what way is it distinguishable from plain ''war'' - war in the ordinary meaning of the word ?

 

            The answer - which is accepted also by English lawyers - is to be found not in English case-law, but rather in American case-law. In England, apparently, the courts have not yet had the opportunity of considering that question. This is hardly to be wondered at, seeing that, in modern times, the English people have very little experience indeed of such happenings and situations. Stroud, for example, in his Legal Dictionary (Second Ed., at p. 317), makes use of a definition taken from the famous American judgment in Brown v. Hiatt (8), and even Oppenheim, in his book on International Law (Sixth Ed., edited by Lauterpacht, at p. 173), adopts the definition found in American judgments, without expressly emphasizing the fact.

           

            The definition is as follows:-

           

"Civil war is when a party arises in a state which no longer obeys the sovereign, and is sufficiently strong to make head against him; or when, in a republic, the nation is divided into two opposite factions and both sides take up arms." (Brown v. Hiatt (8), at p. 379.)

 

            According to Oppenheim:

 

            "In the proper sense of the term a civil war exists when two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State, or when a large portion of the population of a State rises in arms against the legitimate Government."

 

            In American case-law itself from which, as stated, the said definition has been taken, we find in addition to Brown's case (8) the following dicta on the question of when there is a civil war.

           

            "when a party is formed in a state, which no longer obeys the sovereign, and is of strength sufficient to make head against him."

 

(Juando v. Taylor (9).)

 

            And:-

 

            "Where the people of a country are divided into two hostile parties, who take up arms and oppose one another by military force."

           

(Fuller C.J., in Underhill v. Fernandez (10).)

 

            From a certain point of view American case-law regards the Civil War of the 19th century, the war between the North and the South, from 1861 to 1865, as an exception. The point is that in that war there were not two adversaries struggling within a single state framework, but that one of them, namely, the Southern States, sought to secede, and in fact seceded, from the body of the previous State which was common to both of them. To their way of thinking, the Confederate States were fighting a territorial war against another State, a foreign State. That, of course, was not the attitude and outlook of the States of the North. They regarded the Southerners as rebels against the realm, seeking to upset the primary arrangement and to establish for themselves in the State, though admittedly only in a part thereof, a government of their own, an illegitimate government. Since, as is well known, the campaign ended after a four years' struggle in the victory of the North and the return of the Confederate States to the bosom of their motherland, to the framework of the overall, common State, it is by the light of the "Northern outlook" alone that the character of the War as a whole is to be judged ex post facto. However, the fact that the Southern States themselves regarded the struggle in the light of a 'territorial' war, a war between States, was full of important legal consequences as regards the Northern States as well : it bestowed upon those States the international rights given in ordinary war to each of the belligerent States. It follows that, eventually, the American Civil War assumed a two-fold aspect : both that of a genuine civil war, and also that of a war between States. Indeed, that is what was said in one of the judgments dealing with this subject :

 

            "In the war with the so-called Confederate States the rebels were at the same time belligerents and traitors, and subject to the liabilities of each; while the United States sustained the double character of belligerent and sovereign, and had the rights of both, their rights as belligerents were unimpaired by the fact that their enemies owed (them) allegiance." (The Amy Warwick case, (11), pp. 245, 246.)

 

            We find the very same notion - the notion of the dual character of n civil war - expressed in another American judgment, though with a change of wording as well as a slight change in the reasoning. Here, there is a definite tendency to limit the technical juridical content of the term 'civil war' to the War of the American States in so far as it is thus not deprived of the description which it has attained in history. There the matter was set out in the following terms :

           

            "The term 'civil war' is sometimes and perhaps anciently more commonly used to denote a contest in arms between two great parties in the state for the control of the state, but without any design of separation. But the definition has been more extended in modern times. Our civil war was also a territorial war. The Southern party was for some years in absolute possession and control of a large territory, with a regularly organized government and courts. On the borders there were portions of territory where both parties claimed possession and both sides organised governments."

 

(Salisbury Hubbard & Co. v. Harden Express Co. (12).) 1

 

            It ought to be emphasized that this "modern" broadened notion of "civil war", and its being made to cover opponents, neither of whom wishes to live under the same roof, does not cancel out the remaining marks of identification that the authorities have given to this notion, and its classic definition remains in force. It is worth noting also that not everyone admits to this broadening of the notion and that there are those who expressly say that the American Civil War "was not a civil war, in its legitimate sense... it was a war between states". (Mayer v. Reed & Co. (13).)

           

            If we add up all those various definitions and endeavour to clothe them with a general, short and concise formula, we observe that "civil war" means the war of a citizen against the realm, or a war between citizen and citizen (through force of arms) for the purpose of obtaining power throughout the State or over a part of it. Emphasis is placed on the word "citizen", that is to say, it always concerns a citizen (more accurately, a group of citizens), struggling with the government or for the government of his State, and not of n State seeking to extend its government over the territory and citizens of a foreign State.

           

            Such is the legal definition of the term, and such is the plain meaning of the name in ordinary language in the history books. The war of Pompey and Julius Caesar in the First Century B.C.E.; the Roman "Wars of Succession" to the title of Emperor in the Second and Third Centuries C.E., Cromwell's rebellion against the monarchy in the middle of the 17th Century, and the Bolsheviks' war against the Provisional Government and afterwards against the "White Russians" in the present century - all these are called "civil wars" by historians, and in all of them are to be found the qualities pertaining to this term in the legal definition quoted above. I have never come across this description in use to describe an external war between kings and States.

           

9. Now that we have arrived at a determination of the legal conception of a "civil war", let us examine whether it fits the details of the case before us. To that end, I must return once more to the facts, and fill in what I omitted in the short and concise description given at the outset of this judgment.

 

            The present appellant was born in the village of Araba, which lies in the valley of Bet Netofa in Lower Galilee (that is the historical Erev, mentioned in the Jerusalem Talmud, Shabbath, "Kol Kitvei", and in other places). In the days of the Mandate he served for a certain period as a medical orderly in the Transjordanian Frontier Force, and with the approach of the end of the Mandate in March, 1948, he was demobilised and returned to his birthplace. Here he participated, apparently, as a volunteer in the Arab "Army of Rescue" (Kawkji's Army) which was active in that vicinity both before and after the establishment of the State, until the capture of the village by the Israel Defence Forces in October, 1948, during Operation "Hiram". When the village was captured the appellant stayed on, and was registered along with the remainder of its inhabitants in the first registration of residents which was carried out a few weeks after the capture. From all those facts, the court below concluded, and rightly so, that in the decisive period, namely, the end of 1948, the appellant was an Israel resident, a permanent resident of the said village of Araba.

           

            At the beginning of December, 1948, on a dark and wintry night, the appellant crossed the Israel-Lebanon frontier, enlisted in the Arab "Army of Rescue", and served in it for 6 months. This "Army of Rescue", so the court below found, was "an organised army, with an administration and a system of command", but no one seriously disputes the fact that, at that time, it operated within the framework, or at least under cover, of the Syrian Army, and that when in February, 1949, the appellant was seen in Lebanon by one of the witnesses, he was dressed in military uniform, and on his cap he wore the insignia of the Syrian Army. The appellant served in the Company of one Abou Ahmed from Tsipori, a well-known bandit leader from the days of the 1986 troubles in Palestine, and most of the soldiers in that Company were Palestinian Arabs. That Company carried on hostilities, operating on the sector of the Syrio-Lebanese Front opposite the northern border, and its object was, according to the evidence of one of the witnesses, "to attack the Jews". It is accordingly argued by the prosecution that the appellant aided in the war of the Arab "Army of Rescue" against the Jewish population of the State of Israel, and that that constitutes the offence dealt with in section 58(a) of the Code.

 

            This argument is entirely erroneous and amounts, indirectly and unintentionally, to a diminution of the whole conception of the War of Independence. With all due respect to those who put it forward, it lacks a sense of proportion and blurs the clear line dividing the pre-war "disturbances" from the warlike struggle itself which commenced with the establishment of the State. The Arab-Israel War was not a "civil war" but a war between sovereign States on both sides, in which the aggressors, the seven Arab States, sought to destroy all that the Jews had created and erase the State of Israel from the map. This was a "territorial" war, a war between States, and it makes no difference that the aggressor-invaders themselves did not recognise the political existence of the victim State. It was recognised immediately after its birth by powerful States, great nations of the earth, and became a living and actual reality on the political stage of the world. We never admitted that the Arab States came to help the Arabs of Palestine, or that the object of their war was to establish an independent Palestinian State within its former Mandatory borders, under the hegemony of the local Arabs. That, indeed, was the invaders' argument and ground for quarrel, as put forward by their spokesmen before the United Nations and in other forums, but the truth was very different. It may be that those few battalions that called themselves the "Army of Rescue" had their own particular ambitions, but they were not the ones who settled the aim of the war, and they were not the ones who had control of the manner in which it was waged. Their weight was too light and insignificant as against the weight of the armies of the seven States. It is not important, therefore, what the veteran bandit leader, Abou Ahmed from Tsipori, thought, or what the political aim of the men of his Company was. They served, willy-nilly, as tools in the hands of the invaders, and the latter's aims absorbed and swallowed up the aims of their unimportant assistants, the Arab "Army of Rescue. "

 

            Briefly put, the Arab-Israel War was not a "civil war" within the meaning of section 53(a) of the Code, and so whoever participated in that War against Israel, even if he was an Israel resident, cannot be charged with an offence under that section.

           

10. I said, "He cannot be charged with an offence under that section". I did not say that he cannot be charged with any offence at all. I am inclined to think that if an Israel resident, owing allegiance to the State, takes part in a war against the State of Israel, he may be charged with treason and brought to trial under section 49(1) of the Criminal Code Ordinance. This section, in its Mandatory form, imposes the death sentence on "any person who levies war against His Majesty in order to intimidate or overawe the High Commissioner". In the place of His Majesty as the sovereign (and the enemy in a war), there now comes the State of Israel, and instead of the High Commissioner as the Governing Authority (and as the object in the war), there comes the Government of Israel. They are, on any reckoning, "modifications as may result from the establishment of the State and its authority", within the meaning of section 11 of the Law and Administration Ordinance, 19481), and they also alter the content of section 49(1), while preserving its essential nature, namely, the prohibition of war against the sovereign, with the object of deposing the Government of the State or of intimidating it. That being so, it seems to me prima facie that we may alter the wording of that section so that it will henceforth read : "Any person who levies war against the State of Israel in order to intimidate or overawe the Government of Israel is guilty of treason and is liable to the punishment of death." The outcome will be that if the act is done, as in the present case, by an Israel resident owing allegiance to the State and who does not, therefore, enjoy the defence or exemption deriving from the principles of International Law (namely, that in the absence of a duty of allegiance he cannot be guilty of treason - see Oppenheim (ibid. at p. 322 sup.), he may be charged with treason and tried according to section 49(1) of the Criminal Code Ordinance.

 

            However - and this is the decisive point here - even if we accept that view, it will not alter the position of the present appellant in any way; for since in fact he was charged according to section 53(a), and not according to section 49(1), and the punishment to which an offender under section 49 is liable is more severe than the punishment to which an offender under 53 is liable (capital punishment in place of imprisonment), in accordance with section 52 of the Criminal Procedure (Trial upon Information) Ordinance 2)), as amended in 1939, and having regard to the proviso to section 72(1)(b) of that Ordinance3) we cannot substitute for the conviction under section 53(a) a conviction under section 49(1), even if we are of opinion that the appellant is indeed guilty of an offence under that section. The final conclusion therefore, is that we have no alternative but to quash the conviction of the appellant and set him free (unless he is being held for some other offence).

           

            In view of the conclusion which I have reached there is no need to express any opinion here on the remaining questions that arose in this appeal, including the submission that the lower court lacked jurisdiction which was pleaded by counsel for the appellant. For the same reason there is also no need to deal with the application to hear further argument on the question of jurisdiction that was submitted by the Deputy State Attorney.

           

            I am accordingly of opinion that the appeal should be allowed, and the conviction and sentence set aside.

           

SMOIRA P: I agree.

 

WITKON J: I agree.

 

Appeal allowed, and conviction and sentence set aside.

Judgment given on December 2, 1959.

 

1)          See infra p. 271.

1)          Law and Administration Ordinance, 1948, s 11:

Existing law.      11. The law which existed in Palestine on the 5th Iyar, 5708 (l4th May, 1948) shall remain in force, in so far as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities

2)          Criminal Procedure (Trial upon Information) Ordinance, section 52:

Power to find guilty if attempt, etc., although accused not so charged

52. The court may find an accused person guilty of an attempt to commit an offence charged, or of being accessory after the fact, or may convict him of an offence not set out in the information and without amendment of the information notwithstanding that such offence is one within the jurisdiction of some other court to try upon information, or one which court be tried summarily:

Provided that such offence be covered by the evidence in the case and by findings of fact necessary to establish it and does not render the accused person liable to a greater punishment than does any charge in the information

 

3)          Criminal Procedure (Trial upon Information) Ordinance, section 72(1)(b

Power of the court on an appeal

72(1). In determining an appeal the Court of Appeal may-

(b) amend the judgment of the Court of Criminal Assize or district court either as to the description of the offence proved or the article or section of the law applicable and may increase or reduce the punishment and, in general, give such judgment as in its opinion ought to have been given by the court below on the information and evidence before it, or

 

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4169/10

HCJ 4193/10

HCJ 4220/10

HCJ 4221/10

HCJ 4240/10

HCJ 4243/10

 

 

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

 

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

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

 

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

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

 

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

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

 

Petitioner in HCJ 4221/10: Yekutiel Ben Yaakov

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

 

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

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

 

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

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

 

 

Petitions to grant an order nisi

 

Date of hearing:

20 Nisan 5770

(June 2, 2010)

 

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

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

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

For the petitioner in HCJ 4421/10: Himself

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

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

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

 

 

Judgment

 

 

President D. Beinisch:

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

The President          Justice                 Justice

_________________________

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

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

HCJ 3117/02

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

v.

The Minister of Defence

 

The Supreme Court sitting as the High Court of Justice

[April 14, 2002]

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

 

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

 

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

 

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

 

For the petitioners—Yossi Wolfson

For the respondent—Malchiel Blass, Yuval Rotman

 

JUDGMENT

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

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

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

April 14, 2002

 

 

HCJ 3278/02                                                                                             

 

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

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

3.  The Association for Civil Rights in Israel

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

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

6.  Addameer – Prison Support and Human Rights Association

7.  Alhak – The Law in Service of Human Rights

v.

Commander of the IDF Forces in the West Bank

 

 

 

The Supreme Court Sitting as the High Court of Justice

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

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

 

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

For the respondents—Shai Nitzan

 

 

JUDGMENT

President A. Barak

 

Facts

 

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

                                     

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

 

Petitioners’ Arguments

 

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

 

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

 

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

 

Statement of the State Attorney

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The First Hearing – April 25, 2002

 

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

 

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

 

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

 

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

 

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

 

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

 

The Second Hearing – July 28, 2002

 

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

 

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

 

The Third Hearing – October 15, 2002

 

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

 

The Normative Framework

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

From the General to the Specific

 

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

 

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

 

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

 

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

 

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

 

Detention Conditions and Judicial Review

 

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

 

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

 

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

 

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

 

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

 

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

 

Petition Denied.

 

Justice D. Beinisch

I agree.

 

Justice I. Englard

I agree.

 

Petition Denied.

December 18, 2002

 

 

H.C.J. 7957/04

 

 

Petitioners:                               1.       Zaharan Yunis Muhammad Mara'abe

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

 

v.

 

Respondents:                                      1.         The Prime Minister of Israel

2.The Minister of Defense

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

4.The Separation Fence Authority

5.The Alfei Menashe Local Council

 

 

The Supreme Court Sitting as the High Court of Justice

 

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

 

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

 

Petition for an Order Nisi

For Petitioners:                        Michael Sfard

                                               Dan Yakir

                                               Limor Yehuda

For Respondents no. 1-4:        Anar Helman

                                                Avi Licht

For Respondent 5:                  Baruch Heikin

 

 

 

JUDGMENT

 

President A. Barak:

 

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

 

A.        The Background and the Petition

 

            1.         Terrorism and the Response to It

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(5) . . .

 

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

 

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

 

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

 

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

 

(4) . . .

 

(5) . . .

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

            2. The Alfei Menashe Enclave

 

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

 

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

 

            3.         The Petition

 

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

 

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

 

            4.         The Hearing of the Petition

 

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

 

            5. The Discussion Framework

 

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

 

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

 

            1.         Belligerent Occupation

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

In another case I added:

 

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

 

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

 

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

 

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

 

In another case I stated:

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

   

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

4.         Proportionality

 

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

 

            5.         The Scope of Judicial Review

 

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

 

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

 

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

 

 

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

 

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

 

C. The Beit Sourik Case

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

            2.         The ICJ's Jurisdiction and Discretion

 

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

 

 

 

            3.         The Legality of the Fence in International Law

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

            1.         The Legal Status of the Advisory Opinion

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

            4.         The Difference in the Factual Basis

 

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

 

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

 

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

 

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

 

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

 

We concluded our discussion on this question, stating:

 

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

 

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

 

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

 

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

 

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

 

The ICJ concluded its position, holding:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Later in the judgment the Court held:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

F.         The Separation Fence at the Alfei Menashe Enclave

 

            1.         The Enclave

 

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

 

            2.         Petitioners' Arguments

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

            3. The State's Response

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

            4.         Petitioners' Response to Respondents' Response

 

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

 

            5.         The Alfei Menashe Local Council's Response

 

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

           

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

 

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

 

            7.         The Preliminary Arguments

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

            9.         The Scope of the Injury to the Local Residents

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

            10.       The Proportionality of the Injury to the Local Residents

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Justice D. Beinisch:

 

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

 

 

Justice A. Procaccia:

 

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

 

 

Justice E. Levy

 

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

 

 

Justice A. Grunis:

 

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

 

 

Justice M. Naor:

 

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

 

 

Justice S. Jubran:

 

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

 

 

Justice E. Chayut:

 

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

 

 

Vice President M. Cheshin:

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Decided according to the judgment of President A. Barak.

 

Given today, September 15 2005.

 

 

             

 

HCJ 358/88

           

The Association for Civil Rights in Israel and others

v.

The Central District Commander and Another

 

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[July 30, 1989]

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

 

 

Editor's Synopsis -

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

           

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

           

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

Israel Supreme Court Cases Cited:

 

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

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

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

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

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

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

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

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

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

 

American Cases Cited:

 

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

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

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

 

 

JUDGMENT

 

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

 

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

           

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

 

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

 

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

 

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

 

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

           

            "FORFEITURE AND DEMOLITION OF PROPERTY, ETC.

           

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

 

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

 

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

           

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

 

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

 

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

           

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

 

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

           

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

 

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

           

            We will now examine the litigants' claims.

           

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

                                                                                                

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

 

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

                                                                                                

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

                                                                                                

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

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

                                                                                                

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

                                                                                                

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

                                                                                                

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

           

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

 

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

           

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

           

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

 

            In summation:

           

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

           

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

           

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

           

            This is the absolute order I propose in this situation.

           

            ELON D.P.: I concur.

           

            WALLENSTEIN J.: I concur.

           

            Decided as stated in the President's decision.

           

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