Occupied territories

Dweikat et al. v. State

Case/docket number: 
HCJ 390/79
Date Decided: 
Wednesday, October 10, 1979
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Voting Justices: 
Author
majority opinion
Author
concurrence
Author
concurrence
Non-writer
majority opinion
Non-writer
majority opinion
Full text of the opinion: 

[Emblem]

 

In the Supreme Court as High Court of Justice

 

   HCJ 390/79

 

Before:                                    The Honorable Justice Landau – Deputy President

                                    The Honorable Justice Witkon

                                    The Honorable Justice Asher

                                    The Honorable Justice Ben Porat

                                    The Honorable Justice Bechor

           

 

The Petitioners:

 

                                    ‘Izzat Muhamamad Mustafa Dweikat et al.

 

                                    versus

 

The Respondent:

 

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

                                   

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

 

Adv. E. Khouri

                                    On behalf of Petitioners 1-16

 

                                    Adv. A. Zichroni, Adv. A. Feldman

                                    On behalf of Petitioner 17

 

                                    Adv. G. Bach, State Attorney

                                    On behalf of Respondents 1-4

                                   

                                    Adv. R. Cohen, Adv. M. Simon

                                    On behalf of the Respondents 5-6

 

 

 

 

Abstract

 

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

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

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

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

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

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

 

Judgment

Deputy President Landau

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

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

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

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

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

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

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

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

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

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

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

 

And it was also said there that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Asher

I agree.                       

Justice Ben Porat:

I agree.

Justice Witkon:

I too believe that the law is with the petitioners.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He adds and says in that same affidavit:

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

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

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

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

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

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

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

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

 

Justice Bechor:

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

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

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

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

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

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

 

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

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

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

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

                 

 

 

Lahisse v. Minister of Defense

Case/docket number: 
HCJ 27/48
Date Decided: 
Sunday, February 1, 1959
Decision Type: 
Original
Abstract: 

An officer in the Israel Army was charged before a military court in Israel with murder, an offence under S. 214(b) of the Criminal Code Ordinance 1936 and section 97 of the Army Code 1948. The officer submitted that the military court had no jurisdiction inasmuch as the acts with which he was charged were alleged to have been committed in Hula, a village in Lebanon, and outside the borders of either Israel, or Palestine as constituted under the Mandate. This submission was rejected, but the case was stood over to allow him to petition the High Court on the question of jurisdiction.

               

Upon the hearing of the petition it was argued, in addition to a submission of no jurisdiction in the military court, that only that Court had jurisdiction to interpret the Army Code.

 

Held, rejecting the petition, that where a criminal offence is committed by an army officer beyond the borders of Israel, he may be tried by a military court under the Army Code:

 

A person charged before a military court who alleges that that court is without jurisdiction, may petition the High Court without awaiting the decision of the military court:

 

The High Court may interpret the Army Code, the military court having no exclusive jurisdiction to interpret that Code :

 

The military court has jurisdiction to try a case such as the present in accordance with Article 38 (as amended) of the Palestine Order in Council, read together with Section 3(b) of the Criminal Code Ordinance 1936 and section 3 of the Army Code.

 
Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

CHESHIN J. giving the judgment of the court. On December 6, 1948, an order nisi was issued by this court calling upon the respondents to appear and show cause why they should not be restrained from placing the petitioner on trial before the Special Tribunal of the Defence Army of Israel on a charge of murder under section 214(b) of the Criminal Code Ordinance. 1936, and section 97 of the Army Code, 1948, and why they should not release the petitioner from custody.

           

2. The facts, as detailed in the affidavit of the petitioner, are not in dispute, and may be summarised shortly as follows:

 

            The petitioner, Shmuel Lahisse, an officer of the rank of first lieutenant, served in the Defence Army of Israel as a Company Commander. On November 12, 1948, he was arrested by order of the prosecutor of "A" Command, and was charged with the murder of a number of persons in the village of Hula, Lebanon, on October 31, 1948, and November 1, 1948.

           

            On December 2, 1948, the petitioner was brought to trial before the Special Tribunal of the Defence Army of Israel sitting in Haifa. After the charge had been read to him, but before he had pleaded to the charge, his counsel submitted that the tribunal had no jurisdiction to consider the offences charged, as it was clear from the information itself that the acts constituting the offence had been carried out beyond the borders of Palestine and, therefore, outside the jurisdiction of the tribunal. The tribunal, by majority decision, dismissed this contention, and counsel for the petitioner requested an adjournment in order to enable them to apply to this court for a ruling on the question of jurisdiction. The tribunal held unanimously, "that there is no justification for acceding to the request of the Defence", but it adjourned the hearing to another date - in its own words - "as an exception and having regard to the unusual matter arising in this case and the serious penalty to which the accused" (the petitioner) "will be liable in the event of his conviction". At the same time the tribunal hinted, in the course of its decision, that ''the Defence is entitled to make use of this delay for the taking of such steps as it sees fit". The accused then petitioned this court and, as above stated, an order nisi was issued.

 

3. Before considering in detail the principal submissions of counsel for the parties we would like to refer, although the matter may not be strictly relevant, to the following point, because it is one that gives rise to much discussion in cases of this nature. The point is this : In section 10 of his petition the petitioner submits that "the decision of the Supreme Court, sitting as the High Court of Justice... binds all the courts in the country, including military tribunals". Mr. Cohn, the State Attorney, who appears on behalf of the respondents, does not deny the soundness of this contention, and the affidavit of the President of the Special Tribunal before whom the charge against the petitioner was heard, the third respondent before us, makes no reference to this submission. In the absence of any reference to the point in the affidavit it is unnecessary to deal with it at any length. It appears, however, from the detailed record of the proceedings before the Special Tribunal - which was annexed to the petition - that this question was the subject of lengthy discussion and argument, and the President of the Tribunal made some remarks which seem to throw doubt on the competence of this court to interfere in proceedings before the military courts. In one of its decisions it was held by the Special Tribunal that:-

 

            "There is no authority in the law of the State for the submission:

 

            (a) that the High Court of Justice may intervene in the course of proceedings before a military tribunal:

           

            (b) that a military tribunal is bound in any way by the decisions of any civil court...".

           

            It was this very decision which induced counsel for the petitioner to make the submission contained in paragraph 10 of the affidavit which he filed, and since the question of the "superiority" of the civil as against military courts is raised in this court all too frequently, it is imperative that something be said here on this subject which will constitute an "authority", or, at least, something in the "nature of an authority".

           

4. The Army Code, 1948, from the provisions of which the military tribunals derive their jurisdiction, is modelled upon the English Army Act. This Act does not lay down specifically the relationship between the civil courts and military tribunals. Learned jurists in England, however, regard the military tribunals as part of the general system of courts for certain purposes, and in the course of time a number of principles which indicate the de facto relationship between these courts have been laid down by the courts and legal writers. A number of these principles are cited in the Manual of Military Law, in Chapter 8 of which the following is laid down:1)

 

            "The members of courts martial... are, like the inferior civil courts and magistrates, amenable to the superior civil courts for injury caused to any person by acts done either without jurisdiction, or in excess of jurisdiction... Such injuries will equally be inquired into whether they affect the person, property, or character of the individual injured; and whether the individual injured is a civilian or is subject to military law".

 

            '"The jurisdiction of a tribunal may be limited by conditions as to its constitution, or as to the persons whom, or the offences which, it is competent to try, or by other conditions which the law makes essential to the validity of its proceedings and judgments. If the tribunal fails to observe these essential conditions, it acts without jurisdiction... The result of acting without jurisdiction is that the act is void, and each member of the court-martial... is liable to an action for damages".

 

            "The proceedings by which the courts of law supervise the acts of courts-martial... may be criminal or civil... Civil proceedings may either be preventive, i.e., to restrain the commission or continuance of an injury; or remedial, i.e., to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the courts of law is exercised as against the tribunal of a court-martial by writs of prohibition or certiorari.

 

            "The writ of prohibition issues out of the High Court of Justice to any inferior court, when such inferior court concerns itself with any matter not within its jurisdiction, or when it transgresses the bounds prescribed to it by law. The writ forbids the inferior court to proceed further in the matter, or to exceed the bounds of its jurisdiction; and if want of jurisdiction in the inferior court be once shown, any person aggrieved by the usurpation of jurisdiction is entitled to the writ as a matter of right".

           

            "Disobedience of a prohibition is a contempt of court, and as such punishable by fine and imprisonment at the discretion of the court which granted the writ “.

           

5. These principles are laid down in respect of the courts of England, but as it is not disputed that the military tribunals in this country are also part of the system of the courts generally, it may be assumed that they also apply to the relationship between the civil and the military courts in Israel. Since this is so, this court is competent to direct military tribunals, through orders issued by it, to refrain from considering a particular matter, and it is the duty of the military tribunal to which the order is addressed to comply with its terms. Section 58 of the Army Code, 19481), is entirely irrelevant. This section, which for some reason has been given the title "The supremacy of Military Tribunals" - is merely designed to provide that a soldier who has committed an offence and is arraigned in criminal proceedings before a civil court is not released thereby from also being tried for the same offence before a military tribunal. It can on no account be deduced from the language of the section, however, that military tribunals are never subject to the authority of this court, even when they purport to arrogate to themselves jurisdiction which in law they do not possess.

 

6. Mr. Cohn, in the course of his argument before as, submitted that in fact only a small number of applications for a Writ of Prohibition had been made to the civil courts in England, and even those which had been made, were dismissed. If this be the fact, it merely shows that those responsible for prosecutions in the military tribunals in England are very careful in their work and are anxious not to bring matters before the tribunals which are beyond their jurisdiction, or that the few applications which were in fact brought were not sufficiently well based to succeed. This does not show that a civil court will never intervene in the work of a military tribunal. The Manual of Military Law, which I have quoted, deals also with this point, and it is said there, at page 123:

 

"Although the writ of prohibition has never actually been issued to a court-martial, there seems no doubt that it might issue in a proper case".

           

7. We make these comments in the belief that the question of the "superiority" of military tribunals over civil courts will no longer trouble the judges who sit on such tribunals nor those who plead before them.

 

8. Turning now to Mr. Cohn's reply on behalf of the respondents, we find it is divided into two parts. The first includes those arguments which deal, in the main, with the submission that the petitioner's application to this court is premature. The second contains Mr. Cohn's arguments on the merits of the petition. We shall deal with these submissions separately.

 

9. In the first place, it is submitted by Mr. Cohn that this Court should not accede to the prayer of the petitioner, since the regular work of the military tribunals would be seriously hampered if it be held that any person charged before them is entitled, at any time, to apply to this court for a writ of mandamus or a writ of prohibition. It is emphasised by Mr. Cohn that he makes this submission on the specific instructions of the third respondent, the President of the Special Tribunal, which dealt with the case of the petitioner. In our opinion this argument discloses no ground for dismissing the petition, and there is no need to deal with it at any length. Where a person accused before a military tribunal requests a postponement of the proceedings in order to petition this court, the military tribunal may dismiss the application and proceed with the case, if this appears to it to be the correct course. Where, however, a person accused petitions this court and demands justice, it is right that he should be heard, and the doors of the court should not be closed against him merely to suit the convenience of the military tribunal. On no account are the basic rights of a citizen to be withheld on grounds such as these. If, indeed, a military tribunal acts in a particular case without jurisdiction, a serious infringement of the rights of the citizen has taken place, and this court will not hesitate to hear his petition, nor will it pay any regard to the degree of inconvenience which may be caused to the military tribunal in its work.

 

10. The second submission of the State Attorney is that this court will not usually intervene when another remedy is available to the petitioner. According to this argument the petitioner in this case must first be tried before the military tribunal. If he is convicted, he will be able to appeal against the judgment as is provided in the Army Code, 1948. If the judgment on the appeal does not satisfy him, he may apply to the responsible authority for a pardon. If at that stage too he feels aggrieved - only then may he petition this court. As a general rule the principle stated above is a sound one, and this court has in first acted upon it in innumerable cases. The jurisdiction of this court is derived from the second paragraph of Article 43 of the Palestine Order in Council, 1922, and section 7 of the Courts Ordinance, 1940. The second paragraph of Article 43 of the Order in Council provides that: -

 

"The Supreme Court, sitting as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of justice".

           

Section 7 of the Courts Ordinance provides, inter alia, that: - "The High Court of Justice shall have exclusive jurisdiction in the following matters: -

 

            (a)        ..................

           

            (b)        orders directed to public officers or public bodies in regard to the performance of their public duties and requiring them to do or refrain from doing certain acts".

           

            In the light of these two provisions this court (in the time of the Mandate) gave a number of directives to indicate in which cases it will intervene and in which cases it will refrain from intervening; see, for example, Havkin v. Inspector-General of Police and Prisons (1) which sets forth the principles which had been laid down in a number of earlier decisions. Today, however, it is beyond doubt that this court will certainly intervene by the issue of a Writ of Prohibition, where an inferior court in a particular case proposes to assume jurisdiction it does not possess. The present case is not similar to one in which it may be said to the petitioner, as was said to him in the case of Barakat v. Maronite Ecclesiastical Court (2), "You have the right not to appear before the body which wishes to try your case if in fact it does not constitute a proper court; wait until actual steps are taken against you, for at this stage of the proceedings you have suffered no injury".

           

            In the case before us the petitioner does not deny that the body which proposes to try him is in general a legal and competent tribunal to deal with the cases of soldiers. His contention, however, is that in this particular case it is wholly incompetent to demand of him that he account for his actions. He is, moreover, not entitled to refuse to obey the summons of the tribunal - he is compelled to appear before it. It would be unjust, therefore, to compel the petitioner first of all to stand trial, and later to be subject to the several stages of the proceedings, with a serious charge carrying a heavy penalty hanging over him, and only after the trial has run its full course to appear here and show that all the proceedings were invalid. At this stage there is no place other than this court to which the petitioner can turn for relief. It seems to us, therefore, that this is one of the eases in which this court is entitled to come to a decision in accordance with both the second paragraph of Article 43 of the Order in Council, and section 7 of the Courts Ordinance.

 

11. The third submission of the State Attorney is that this court should not intervene during the proceedings of the Special Military Tribunal, since section 40 of the Army Code, 1948, deprives it of the right to interpret that Code. That section, which is headed "Interpretation of the Code", provides that "The Presidency of the Supreme Tribunal and any 'sitting' of the Supreme Tribunal shall be competent to interpret this Code should they deem it necessary so to do, and such interpretation shall be binding unless set aside by the Minister of Defence." As I have said, nothing is further from the intention of Mr. Cohn to deny the jurisdiction of this court. On the contrary, he has emphasisd time and again that this court is competent to make orders against military tribunals, and the presidents and judges of such tribunals. In his opinion, however, one power alone has been denied this court by the section cited, and that is the power to interpret the Code and the principles to which it gives expression. It can only be concluded, therefore, that section 40 impliedly deprives this court altogether of the power to consider any matter connected with the soundness of this submission.

 

12. We would point out that section 40, as is the case with many other sections in the Code, is drafted negligently and carelessly, and is defective both in what is lacking and in what is superfluous. It provides, for example, that "a sitting of the Supreme Tribunal" shall be competent to interpret the Code, but we do not know the nature of such a "sitting". Is it intended to refer to every panel of judges "of not less than twenty-one in number" spoken of in section 341), or only to the three or five judges of whom a tribunal is constituted for a particular purpose, as stated in section 361). If the intention is to refer to all the judges sitting together, why are they described by the name "sitting" and not "panel of judges", the name which appears in the marginal note to regulation 34? And if it is intended to refer to a tribunal as ordinarily constituted, sitting for the purposes of a particular case, the question arises whether it is only the Supreme Tribunal which is competent to interpret the Code? Have the inferior military tribunals been deprived of this power ? If so, how is it possible to imagine that an ordinary military tribunal will consider a case in accordance with the Code without being competent to interpret it? And how did the Special Tribunal, which dealt with the case before us, reach its decision if not by interpreting the Code? Moreover, section 40 provides that "such interpretation shall be binding". On whom shall it be binding? Shall it bind every inferior military tribunal in every case brought before it, or only a single particular military tribunal dealing with a particular matter brought before it? And what about the Superior Military Tribunal itself? Will an interpretation given by one "sitting" bind another "sitting" of the same tribunal, or not? And was it the intention that such interpretation should also bind other courts - such as this court - or not? It is elementary principle that an ordinary civil court is not to be deprived of jurisdiction otherwise than by an express provision or an implied intimation in the body of the law itself. (See, for example, section 8(3) of the Registrars Ordinance 1936: section 45 of the Constituent Assembly Elections Ordinance, 1948; regulation 5 of the Emergency (Requisition of Property) Regulations 1948). It would seem, therefore, that the only remarkable feature of this regulation is that the presidency of the Supreme Military Tribunal - although this presidency is not a tribunal in the accepted sense of the term and is also not included in the judicial administration as detailed in regulation 7 - is also competent to interpret the Code, and its interpretation, as also the interpretation of "every sitting of the Supreme Military Tribunal" shall be binding "unless rejected by the Minister of Defence" Their interpretation "will be binding", excludes a case in which their interpretation has not yet been given. In the case before us no interpretation has yet been given by the bodies mentioned in regulation 40, and for this reason this court is competent to interpret the Code for the purpose of this case.

 

13. We now come to deal with the principal submissions of counsel for the parties. As I have said, the petitioner was brought to trial before the Special Military Tribunal under section 214(b) of the Criminal Code Ordinance, 1936, and section 97 of the Army Code. All the arguments of counsel for the parties were concentrated on the exact interpretation which is to be given to section 97, and indeed the fate of the application depends upon which version is accepted by the court.

 

14. Section 97 of the Army Code, 1948, provides:

 

            "(97) Every soldier who, within the framework of the army or by reason of his belonging to the army commits an offence punishable under the general criminal law which is in force or will from time to time be in force in the State and for which belonging to the army does not expressly release the offender from liability, may be tried for such offence before a military tribunal and shall be liable to the same punishment as that to which he would be liable in the ordinary courts".

           

            It is difficult to say that this provision is short and clear, and it is no wonder that the parties before us differ as to its meaning.

           

            Mr. Geiger, counsel for the petitioner, interprets this regulation so as to deprive a military tribunal of the power to try a soldier who has committed an offence under section 214(b) of the Criminal Code Ordinance, 1936, beyond the borders of Palestine. His submission may be framed as follows : when a soldier is tried before a military tribunal for an act which constitutes an offence under the existing criminal law, it must first be ascertained whether, according to that law, the accused would be liable to be punished were he to be tried before the ordinary courts. Counsel stresses the words "commits an offence which is punishable under the existing criminal law", and concludes from this that any act, even if it constitutes an offence, which for any reason would not be punishable by the ordinary courts, is also not punishable by military tribunals. One of the limitations on the powers of the ordinary courts, so counsel continues, is contained in section 6 of the Criminal Code Ordinance, 1936. This section provides : "The jurisdiction of the Courts of Palestine for the purposes of this Code extends to every place within Palestine or within three nautical miles of the coast thereof measured from low water mark".

           

            From this it follows, counsel submits, that the general criminal law recognises only the territorial jurisdiction of the ordinary courts, and not jurisdiction as to persons who commit offences outside the territory. The only exception is that contained in section 5 of the Ottoman Law of Criminal Procedure 18791) which is still in force. Every section of the Criminal Code Ordinance which creates an offence, therefore, must be read together with section 6 of that Ordinance, in order to test whether or not the courts have jurisdiction.

 

15. Applying this test, counsel submits, it is clear that had the petitioner in the case before us been brought to trial for the offence charged before an ordinary civil court, that court would have had no jurisdiction to try the case since the offence charged was committed in Lebanon. That being so, the special Military Tribunal also has no jurisdiction to try the petitioner, since the act in respect of which he is charged before that tribunal does not constitute "an offence punishable under the existing criminal law".

 

16. Mr. Geiger finds support for his submission in the concluding portion of section 97. This section, in speaking of the punishment which may be imposed by a military tribunal for an offence described in the opening portion thereof, provides that the accused "shall be liable to the same penalty as could have been imposed upon him in the ordinary courts". Had a person in the position of the accused been tried before the ordinary courts, so the argument proceeds, he would not have been liable to any penalty at all since, as the offence was committed beyond the borders of Palestine, such court would have had no jurisdiction to try the case. This being so the petitioner, in terms of the concluding portion of the section quoted, is also not liable to any penalty before the Special Tribunal, and if there is no penalty there is no jurisdiction, and there can be no trial.

 

17. Mr. Geiger has not overlooked section 3 of the Army Code which provides that "the Army Code, 1948, shall be binding upon the army and all its institutions and units, and upon soldiers of all ranks whether within the State or beyond its borders". In the first place, however, he submits that this section applies the Code only in respect of the offences set forth in the Army Code itself, that is to say, military offences, and not in respect of other offences which are civil in character and to which the Criminal Code Ordinance - including the limitation in section 6 thereof - applies. According to this argument, therefore, the Army Code, 1948, binds the army, its institutions, units, and soldiers, wherever they are, but only in respect of the offences set forth in that Code, and not in respect of an offence which is stated in the general criminal law. Mr. Geiger further submits in the alternative that the words "beyond its borders" in section 3 mean beyond the borders of the State of Israel, and beyond the borders of the area which was once covered by the Mandate, and was called "Palestine". From this it follows that the Army Code, 1948, binds the army, its institutions, units, and soldiers both in the State of Israel and in Palestine, but does not apply to acts performed by a soldier in Hula in Lebanon - a place beyond the borders of Palestine.

 

18. In explanation of this latter interesting conclusion Mr. Geiger relies upon a number of ordinances, regulations and proclamations. His contention may be put in this way: On May 14, 1948, there was the declaration of the establishment of a Jewish State, namely, the "State of Israel". The Declaration of the establishment of the State, which is published in Official Gazette No. 1, page 1, draws a distinction between the "State of Israel" and "Eretz-Yisrael".1) The "State of Israel" extends only over a portion of "Eretz Yisrael". In terms of section 1 of a proclamation published the same day a legislative authority, the Provisional Council of State, was constituted, and by virtue of the powers conferred upon it, it enacted the Law and Administration Ordinance, 1948. In terms of section 11 of that Ordinance there shall remain in force in the State of Israel ''the law which existed in Palestine on 14th May, 1948". It follows that the limitations on the powers of the legislative authority which applied previously under the law "which existed in Palestine" were not repealed and are still in force. Article 38 of the Palestine Order in Council, 1922, as amended by the Order in Council (Amendment) 1935, provides that "Subject to the provisions of any part of this Order or any Ordinance or Rules, the Civil Courts hereinafter described, and any other Courts or Tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine".

 

            From this it follows that the territorial jurisdiction of the courts of the State of Israel is in fact more limited than that of the courts which existed in the time of the Mandate, for the area of jurisdiction of the courts of the State of Israel only extends over the area of the State, while the area of jurisdiction of the courts in the time of the Mandate extended over the whole area of "Eretz-Yisrael".

           

19. The Provisional Council of State, in enacting section 1 of the Area of Jurisdiction and Powers Ordinance, 1948, opened the door for extending the areas in which the law of Israel will apply. That section provides : "Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel." In this extension, however, there are limitations. Firstly, it is necessary that the extended area be defined by a proclamation of the Minister of Defence as being held by the Defence Army of Israel. Secondly, it is necessary that such extended area be situated within the borders of Palestine - even if it be beyond the borders of the State of Israel. In no circumstances, however, may it extend beyond the borders of Palestine.

 

20. The result, so counsel submits, is that if we read section 3 of the Army Code in the light of all the statutes and proclamations to which I have referred, the meaning of that section is as follows : The Army Code binds the army both within the State and beyond its borders that is to say, beyond the borders of the State of Israel, but not beyond the borders of Palestine. This being so, and the village of Hula in Lebanon being beyond the borders not only of the State of Israel but also of Palestine, and seeing it has not been defined by the Minister of Defence as an area which is held by the Defence Army of Israel, the Army - Code does not apply to it, and the military tribunals have no jurisdiction to try a person for an offence committed by him in that village.

 

21. In view of the authorities which apply to this case these arguments, though forceful, do not appeal to us. Section 97 of the Army Code is of course of decisive importance. The correct intention of that section may be discovered by considering the sections which precede it. Section 97 is found in that chapter of the Army Code which deals with the various types of offences. All the preceding sections, starting with section 77, specify the offences for which a soldier is liable to be tried, and lay down penalties attaching to them. Almost all of these offences are of a military character and are not mentioned in the general criminal law. On the other hand, the general criminal law details numerous offences of a civil character of which there is no mention in sections 77-96 inclusive of the Army Code. Were it not for section 97 a military tribunal would not be competent to try a soldier for one of the offences included in this last group of sections referred to. This section introduced two innovations:

 

            (a) the offences specified in the general criminal law are also offences under the Army Code and may therefore be dealt with by military tribunals.

           

            (b) the penalties which may be imposed upon a soldier by military tribunals in respect of such offences are those laid down in the general criminal law.

           

            This section, therefore, serves as a channel through which all the offences specified in the general criminal law flow into the Army Code, thereby adding to the list of offences already specified in the preceding sections. The opening words of the section "commits an offence punishable under the general criminal law" refer to a soldier who has committed an act regarded by the general criminal law as a punishable offence - that is to say, an act for which a penalty has been prescribed. This is the substantive portion of the law regarding military tribunals and it bears no relationship whatsoever to the question of the jurisdiction of the ordinary courts. Let us suppose that a person is charged before the District Court of Haifa with an offence committed by him within the area of jurisdiction of the District Court of Jerusalem. It is clear that the District Court of Haifa has no jurisdiction to try and punish the accused. This in itself, however, in no way affects the fact that the act committed by the accused is in the nature of a punishable offence. The District Court of Haifa has no jurisdiction but the offence is still an offence which is punishable under the Criminal Code.

           

22. This is what is intended by the opening words of section 97. Where a soldier is charged before a military tribunal under a section of the Criminal Code, the opening words of section 97 require that that Code be consulted in order to determine whether the act of the accused constitutes an offence for which a penalty is prescribed. At this stage no reference should be made to section 6 of the Criminal Code, for that section deals not with offences and punishments but with the jurisdiction of the general courts, while we are concerned with the military courts.

 

23. In the same way in which the offences described in the general criminal law are introduced into the Army Code by the opening words of section 97, so the penalties attaching to such offences are introduced by the concluding words of the same section. There may be some force in the submission of Mr. Geiger that the words "shall be liable to the same punishment as that to which he would be liable in the general courts" in the concluding portion of the section, force as to ask whether the person in question would be liable to be punished had he been charged before an ordinary court, and I attach importance to the words "to which he would be liable". The person charged in this case would not be liable to be punished in a general court - not because there is no offence, but because in terms of section 6 of the Criminal Code such court would have no jurisdiction to impose the punishment. This submission, however, goes not to the jurisdiction of the military tribunal but to the merits of the case. It must be made, therefore, before that tribunal when all the other submissions of the defence on the merits of the case are presented to that tribunal.

 

24. It must be borne in mind, moreover, that the opening words of section 97, in speaking of the offence, are directed not to a particular person charged nor to a particular offence, but to offences generally ("an offence punishable"). As against this, the concluding words of the section speak of the punishment to which a particular accused may become liable. It follows, therefore, that the jurisdiction of the military tribunal is to be determined by the following two factors:

 

(a)    whether the accused committed an act which constitutes an offence under the Criminal Code;

 

(b)   whether a punishment for such offence is prescribed by the Criminal Code.

 

The question whether or not a particular person charged is liable to be punished for a particular act does not require consideration of the jurisdiction of the military tribunal but of the charge itself, that is to say, whether or not upon that charge the accused is liable to be punished. That is a matter for the military tribunal - and not for this court.

 

25. We find support for this opinion in section 3(b) of the Criminal Code Ordinance, 1936. That section provides that "The provisions of this Code shall be without prejudice to . . . .

 

(b)   the liability of any person to be tried and punished for an offence under the provisions of any law relating to the jurisdiction of the Palestine Courts in respect of acts done beyond the ordinary jurisdiction of such Courts;"

 

            In other words, the legislature has left the door open for itself to enact laws in the future (and to provide therein also for what has happened in the past) whereby courts will be competent to try and punish persons for acts committed by them which fall beyond the ordinary jurisdiction of such courts, without their being limited by the provisions of the Criminal Code Ordinance (referring, apparently, to section 6 of that Ordinance). The Army Code must be regarded as one of those laws.

           

26. To sum up our consideration of this problem, therefore, section 97 was not intended to introduce into the Army Code the whole of the existing Criminal Code, but only specific sections thereof, namely, those which deal with particular offences and the punishment for such offences, and no more.

 

            The Criminal Code Ordinance, for example, devotes a whole chapter (chapter 4) to "General Principles relating to Criminal Responsibility". For the purposes of the Army Code, however, sections in the Ordinance creating an offence must not be read together with the sections of that chapter, since a whole chapter of the Army Code, namely, part 3, chapter I, is also devoted to these and similar matters. Moreover, the expression "offence" itself is defined differently in the two statutes. It follows from this that it is not the whole of the Criminal Code that has been introduced into the Army Code by section 97, and that section 6 of the Criminal Code Ordinance falls outside the Army Code which contains a parallel provision in section 3 thereof.

           

27. Even if this is not so, and section 6 of the Criminal Code Ordinance is included in the Army Code by virtue of section 97, that Code also includes section 3(b) which, as I have said, renders section 6 inapplicable.

 

28. We shall now examine the nature of Mr. Geiger's second submission. As we have already said, it is his contention that the Special Military Tribunal lacks jurisdiction because even if the Army Code, by virtue of section 3, binds the army and its soldiers also beyond the borders of the State of Israel, it does not apply to them beyond the borders of Palestine, and the act in respect of which the petitioner is charged took place beyond the borders of Palestine. There is no doubt that a number of legislative provisions published after the declaration of our political independence distinguish between the area which is included in the State of Israel and the area which is outside the State of Israel, but within the borders of Palestine, and lay down a number of provisions relating to those areas of Palestine which have been defined by the Minister of Defence as occupied areas. This distinction, however, between the "State of Israel" and "Palestine" does not appear in section 3 of the Army Code. That section applies the Army Code to the army wherever it is, whether within the State or beyond its borders - the words "beyond its borders" are without limitation.

 

29. Two further submissions have been advanced by Mr. Geiger:

 

            (a) just as no extra-territorial jurisdiction has been conferred upon the civil courts, the military tribunals have no such jurisdiction;

           

            (b) if, indeed, it was the intention of the Minister of Defence to confer extra-territorial jurisdiction upon the military tribunals by section 3 of the Army Code, that section would be ultra vires.

 

30. In support of these submissions Mr. Geiger relies upon the case of Attorney-General v. Nikolaiovitch (3) and upon obiter dicta in the judgment. In that case a number of persons were charged under the Immigration Ordinance with assisting Jewish refugees to immigrate to this country. It was proved that the act committed by the accused had been performed beyond the territorial waters of Palestine. It was accordingly held by the court that since it exercised no authority over the place where the offence was committed it had no jurisdiction to deal with the matter. The Supreme Court (in the time of the Mandate), sitting as a Court of Appeal, upheld the judgment, relying upon the English case of Macleod v. Attorney-General for New South Wales (4).

 

            The facts in Macleod's case were as follows: The appellant, a resident of New South Wales, married a woman in America during the life of his former wife. Upon his return to New South Wales he was charged with the crime of bigamy and upon the basis of a statute which made the marriage of a second wife in any place whatsoever, during the lifetime of the former wife a criminal offence, was duly sentenced. The Court of Appeal in New South Wales upheld this judgment. The decision, however, was reversed by the Privy Council which held that the statute in question must be very strictly interpreted, and that the words "in any place whatsoever" meant any place within the area of New South Wales and not outside it.

           

            The Privy Council went on to point out that were the position otherwise it would mean that the colony of New South Wales assumed jurisdiction over every place in the world. The assumption of powers such as these, which exceeded those conferred upon the colony, was inconceivable. The Privy Council cited with approval the remarks of Baron Parke in Jefferys v. Boosey (5) that,

           

            "It is clear that the Legislature has no power over any person except its own subjects, that is, persons natural-born subjects, or resident, or whilst they are within the limits of the Kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons must, prima facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect.”

           

The Court in the case of Nikolaiovitch (3), when dealing with the principle laid down in Macleod's Case (4), pointed out obiter that had it been the intention of the legislature in enacting the Immigration Ordinance to empower the courts of this country to deal with offences committed beyond its territorial waters, it could not have done so because of the limitations upon its own powers. For these reasons Mr. Geiger asks us to conclude that even under section 3 of the Army Code the area of jurisdiction of the Special Tribunal in this case does not extend beyond the borders of Palestine since that section is to be strictly interpreted.

 

31. These arguments too, which were advanced by Mr. Geiger with much ingenuity, do not appeal to us. It is an important principle of the common law that the area of jurisdiction of the courts extends over the area of the State alone, and that they have no jurisdiction in regard to offences beyond the borders of the State - that is to say, that the criminal jurisdiction of the courts is territorial and not personal (see Archbold's Pleading, Evidence and Practice in Criminal Cases, thirty first Edition, page 25). The Privy Council in Macleod's Case (4) reached its decision upon the principles of the common law which have been introduced into the framework of our criminal law by section 6 of the Criminal Code Ordinance. In England too, however, that principle is subject to limitation and change, and it does not apply when the jurisdiction of the courts has been expressly extended by the legislature. Thus it is said by Archbold, (ibid),

 

            "The jurisdiction of the Courts of British colonies is limited to offences committed within their territories unless express legislation otherwise provides".

           

and at page 26 he says,

 

            "in the case of British subjects who have committed offences abroad there are many exceptions to the common law rule by virtue of specific statutes".

           

We have already seen that the Ottoman Law also recognised personal jurisdiction in the special case dealt with in section 5 in the Ottoman Code of Criminal Procedure, and it is not impossible that this is also the intention of section 3(b) of the Criminal Code Ordinance. Section 3 of the Army Code is then only another example of this. This section confers jurisdiction upon military tribunals to try a military offender who has committed an offence beyond the borders of the State. In other words the jurisdiction of military tribunals is personal and is unlimited by geographical boundaries. Moreover, as we have already seen, the words "beyond its boundaries" are intended to refer to any area beyond the borders of the State, without limitation.

 

32. We now come to deal with the second argument of Mr. Geiger that if that was indeed the intention of section 3 of the Army Code, then that section is ultra vires. Mr. Geiger bases this submission upon Article 38 of the Order in Council, the Declaration of the State of Israel and the first Proclamation made on May 14, 1948, section 11 of the Law and Administration Ordinance, and section 1 of the Areas of Jurisdiction and Powers Ordinance.

 

            There would have been substance in this submission of Mr. Geiger had the Army Code, 1948, been enacted by virtue of the Palestine Order in Council. That, however, is not the case. The Code was enacted in the exercise of powers conferred upon the legislature after the establishment of the State. It is stated at the commencement of the Emergency Regulations Army Code, 1948, that they were made by virtue of the powers conferred upon the Minister of Defence by Section 9 (a) of the Law and Administration Ordinance, 1948. Section 9(b) of the Ordinance provides that,

           

            "An emergency regulation may alter any law, suspend its effect or modify it..... "

           

It is true that in terms of section 11 of the Ordinance

 

            "The Law which existed in Palestine on the 14th May, 1948, shall remain in force"

           

but there are added immediately the additional words,

 

            "in so far as there is nothing therein repugnant to this Ordinance or to other laws which may be enacted by or on behalf of the Provisional Council of State . . . . ."

           

Section 2(a) of the Law and Administration (Further Provisions) Ordinance, 1948, moreover, explains section 11 of the Law and Administration Ordinance, 1948, in providing that

 

            "Where any Law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on the 14th May, 1948, the earlier Law shall be deemed to be repealed or amended even if the new Law contains no express repeal or amendment of the earlier Law".

 

It follows therefore that whatever may be the effect of Article 38 of the Order in Council and section 6 of the Criminal Code Ordinance, 1936, there can be no doubt whatsoever that section 3 of the Army Code, 1948, repealed or amended or replaced all earlier provisions in the Law as was the case, as we have seen above, with the specific statutes in England which modified the principle applied by the common law. It follows therefore that by virtue of this section a military tribunal is competent to try a soldier who has committed an offence under the Army Code (this including an offence under the general criminal law which has been introduced into the Army Code under section 97) beyond the State of Israel, or beyond the area of Palestine to which the Mandate applied. Since this is so, the Special Tribunal constituted for the purpose of dealing with the offence committed by the petitioner in the village Hula in the Lebanon was also competent to try the case.

 

33. We desire in conclusion to mention one other argument of the State Attorney. He submitted at the outset of his argument that since the Minister of Defence had dealt neither directly nor indirectly with the matter of the petition there was no necessity to join him as a respondent. In any event, he continued, the name of the Minister should be deleted from the petition so as not to hinder him in the exercise of the powers conferred upon him by section 40 of the Army Code.

 

            It might be proper to examine this submission but in view of the conclusion which we have reached, as set forth above: we do not deem it essential to deal with it here since, in any event, the court has refused the petitioner the relief which he seeks.

           

            In view of what we have said it has been decided to discharge the order nisi granted upon the application of the petitioner.

           

                                                       Order Nisi Discharged.

                                                       Judgment given on February 1, 1959.

 

1) The learned judge gives a citation from an early edition.

1) See supra p. 132.

1) Army Code, S. 34:

Panel of Judges.

34. The Minister of Defence shall appoint, and ensure that there will always be appointed by him, Judges of the Supreme Tribunal of no less than twenty-one in number and that among the Judges there will be at least two from each commanding rank in the Army except the Chief of Staff.

 

 

1) Army Code, S. 36:

Three or five judges to sit in every case

36. In every case there will sit three or five judges, as may be decided by the President of the Tribunal in each instance, and they shall be appointed thereto from among the Judges of the Supreme Tribunal by the Presidency of the Tribunal, and one of them shall be appointed by it to act as president of the tribunal.

 

1) Ottoman Law of Criminal Procedure, S. 5:

Every Ottoman who has committed outside the territory of the Empire a crime against the safety of the Empire or the crime of forgery of State seals, of legal currency, of any kind of Government titles, of bonds, of treasury bills and of bank notes authorised by the law may be prosecuted and convicted of such offence in accordance with the Ottoman Law if he has not already been convicted therefore in a foreign country.

(Note: The Law was repealed - as regards Israel - in 1955).

1) Meaning literally the 'land of Israel'. This is the Hebrew for Palestine.

Hussein v. Cohen

Case/docket number: 
HCJ 5931/06
Date Decided: 
Wednesday, April 15, 2015
Decision Type: 
Original
Abstract: 

Facts: The appeals focused upon the question of whether properties in East Jerusalem that belong to residents of Judea and Samaria are deemed “absentee property” as defined under the Absentees’ Property Law.

 

Held: In dismissing the appeals, the Supreme Court held that the Absentees’ Property Law applies to properties in East Jerusalem whose owners, beneficiaries or holders are residents of Judea and Samaria. However, in light of the significant difficulties attendant to implementing the Law in accordance with its language, in general, the authorities should refrain from exercising their statutory authority in regard to such properties except in the most exceptional circumstances, and that even then, only subject to the pre-approval of the Attorney General and a decision by the Government or a ministerial committee appointed by it. The Court’s holdings in this judgment will apply prospectively, and only where no statutory steps have been implemented in regard to the said properties.  The holdings of this judgment lead to the conclusion that the specific properties that are the subjects of the appeals are absentees’ property.  

Voting Justices: 
Primary Author
majority opinion
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concurrence
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concurrence
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concurrence
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Full text of the opinion: 

In the Supreme Court

HCJ 5931/06

Sitting as a Court of Civil Appeals

HCJ 2038/09

 

 

Before:

His Honor, President (ret.) A. Grunis

Her Honor, President M. Naor

His Honor, Deputy President E. Rubinstein

His Honor, Justice S. Joubran

Her Honor, Justice E. Hayut

His Honor, Justice H. Melcer

His Honor, Justice Y. Danziger

 

 

 

 

The Appellants

in CA 5931/06:

1. Daoud Hattab Hussein

2. Alian Issa Azat

3. Saba Naji Suleiman Alarja

4. Jamal Naji Suleiman Alarja

5. Majed Naji Suleiman Alarja

 

 

 

The Appellants

in CA 2038/09:

1. Dr. Walid Abd al-Hadi Ayad

2. Dr. Fatma Ayad

3. Mahmoud Abd al-Hadi Iyad

4. Haled Abd al-Hadi Ayad

5. Hiam Ayad

6. Ali Abd al-Hadi Ayad

7. Signe Breivik

8. Safa Abd al-Hadi Ayad

9. Hamad Ahmed Ayad

10. Fatma Abd al-Hadi Ayad

11. Hassan Salameh Ayad

12. Dr Higad Abd al-Hadi Ayad

13. Dr Fayez Ibrahim Abd al-Majid Hamad

 

 

 

V.

 

 

The Respondents in CA 5931/06:

1. Shaul Cohen

2. Adv. Ami Fulman in his Capacity as Receiver

 

3. Dan Levitt

 

4. Robert Fleischer

 

5. Yaron Meidan

 

6. Shlomo Ohana

 

7. Lilian Ohana

 

8. Moshe Ben Zion Mizrahi

 

9. The Head of the Jerusalem Land Registry

 

10. The Custodian of Absentees' Property

 

 

The Respondents in CA 2038/09:

1. The Custodian of Absentees' Property

2. The State of Israel – The Ministry Of Defence

 

 

CA 5931/06: Appeal against the Jerusalem District Court's judgment of May 9, 2006 in CF 6044/04, awarded by The HonorableJudge R. Carmel

 

 

 

CA 2038/09: Appeal against the Jerusalem District Court's judgment of October 2, 2008 in CF 6161/04, awarded by The Honorable Judge I. Inbar

     

 

 

On behalf of the Appellants in CA 5931/06 and CA 2038/09

Adv. Avigdor Feldman; Adv. Miri Hart; Adv. Shlomo Lecker; Adv. Ramsey Ketilat

 

 

On behalf of the First Respondent in CA 5931/06:

Adv. Haim Novogrotzki

 

 

On behalf of the Second Respondent in CA 5931/06

Adv. Ami Fulman

 

 

On behalf of the Third to Fifth Respondents in CA 5931/06:

Adv. A. Baron; Adv. Shirley Fleischer-Geva

 

 

On behalf of the Sixth and Seventh Respondents in CA 5931/06:

Adv. David Ohana

 

 

On behalf of the Eighth Respondent in CA 5931/06:

Adv. Eitan Geva

 

 

On behalf of the Ninth and Tenth Respondents in CA 5931/06, the Respondents in CA 2038/09 and the Attorney General:

Dr. Haya Zandberg, Adv.; Adv. Moshe Golan

 

 

Facts: The appeals focused upon the question of whether properties in East Jerusalem that belong to residents of Judea and Samaria are deemed “absentee property” as defined under the Absentees’ Property Law.

 

Held: In dismissing the appeals, the Supreme Court held that the Absentees’ Property Law applies to properties in East Jerusalem whose owners, beneficiaries or holders are residents of Judea and Samaria. However, in light of the significant difficulties attendant to implementing the Law in accordance with its language, in general, the authorities should refrain from exercising their statutory authority in regard to such properties except in the most exceptional circumstances, and that even then, only subject to the pre-approval of the Attorney General and a decision by the Government or a ministerial committee appointed by it. The Court’s holdings in this judgment will apply prospectively, and only where no statutory steps have been implemented in regard to the said properties.  The holdings of this judgment lead to the conclusion that the specific properties that are the subjects of the appeals are absentees’ property.  

 

 

JUDGMENT

 

President (ret.) A. Grunis

 

1.         The appeals before the Court focus on the question of whether properties in East Jerusalem, the rights in which are owned by residents of Judea and Samaria, constitute "absentees'" property within the meaning of the Absentees' Property Law, 5710-1950 (hereinafter referred to as "the Absentees' Property Law" or "the Law").

 

            This question arose in four cases that were heard jointly (CA 5931/06, CA 2250/06, CA 6580/07 and CA 2038/09). This Court held a considerable number of hearings in the appeals. In the course of hearing the appeals, various attempts were made to resolve the disputes between the parties. In two of the appeals, the need for the Court's decision did indeed become unnecessary. Thus, on February 13, 2014, the appeal in CA 2250/06 (Custodian of Absentees' Property v. Dakak Noha) was withdrawn after the parties reached a settlement agreement that was granted the force of a judgment. The appeal in CA 6580/07 (Custodian of Absentees' Property v. Estate of Abu Zaharaya) was dismissed on September 10, 2013, after the appellant gave notice that he was withdrawing the appeal. The time has now come to decide the remaining two appeals – CA 2038/09 and CA 5931/06.

 

The Background and Chain of Events

 

2.         The appeals before us concern properties in East Jerusalem that were determined to be “absentees’ property”, and whose owners were residents of Judea and Samaria.

 

CA 5931/06

 

3.         CA 5931/06 concerns  some five acres of land located in Beit Safafa on which fruit trees are planted (parcel 34 in block 30277) (hereinafter referred to as "Property 1"). Following to the Six Day War, the property was included in the territory to which the State of Israel extended its jurisdiction  on June 28, 1967 under the Law and Administration Order (No. 1), 5727-1967 (hereinafter referred to as "Order No. 1"). One half of the rights in the property were registered in the Jordanian Land Registry in the name of a resident of Beit Jala who sold them at the beginning of the 1970s to Jewish Israeli nationals. The rights of the Jewish purchasers were recorded in the Land Registry in 1972 and 1974. The remaining half of the rights in the property belonged to Appellants 3-5, who are residents of Beit Jala, and members of their family (hereinafter referred to as "the Alarja family"). In 1973, the majority of the Alarja family's rights in the property were sold (excluding the rights of one of its members, who owned one fourteenth of the parcel and is not party to this appeal). At the end of a chain of transactions, the rights came into the possession of Appellants 1 and 2, who are residents of Beit Safafa. Their applications to register the property in the Land Registry were declined on the ground that they had to apply to the Custodian of Absentees' Property (hereinafter referred to as "the Custodian"). In 1996, the Custodian informed them that he would not release the property.

 

4.         The Appellants filed a claim for declaratory relief in the Jerusalem District Court, to the effect that Property 1 was not absentees' property, or in the alternative, that the Custodian was obliged to release it (CF 6044/04,  Judge R. Carmel). The claim was dismissed in a judgment given on May 9, 2006, which held that the property was absentees' property. The court held that the properties in East Jerusalem of residents of Judea and Samaria are absentees' property despite the fact that the absenteeism is "technical". Hence, whether the owners of Property 1 resided in Egypt at the relevant time (as pleaded in respect of some members of the Alarja family) or were residents of Beit Jala, they were "absentees". Consequently, the rights in Property 1 were vested in the Custodian, and it was held that any disposition made in respect of it by Appellants 3-5 after June 28, 1967 (when it became "absentees' property") was invalid. The court dismissed the Appellants' plea of discrimination in comparison with the Jewish purchasers, whose rights in the property were registered in their name. In the court's opinion, the very registration of the rights did not mean that the registration was lawful, and the same could not constitute a "lever for the making of another mistake by another unlawful registration" (para. 13 of the judgment). In addition, the District Court disagreed with the judgment in OM (Jerusalem District) 3080/04 Dakak v. Heirs of Naama Atia Adawi Najar, Deceased (January 23, 2006, The Honorable Judge B. Okon, hereinafter:  the Dakak case), from which it appears that the residents of Judea and Samaria are not "absentees" according to section 1(b)(1)(ii) of the Law. We shall further refer to the Dakak case below (an appeal was filed against the judgment in the Dakak case in CA 2250/06, as noted in para. 1 above). The first appeal herein (CA 5931/06) was filed against the judgment in CF 6044/04.

 

5.         To complete the picture, it should be noted that other legal proceedings have been conducted in respect of Property 1. These were further to the deletion of the Alarja family's rights from the Land Registry in accordance with a judgment awarded in default of defense on the application of the Respondent 1 (CF (Jerusalem Magistrates) 21351/95, Judge I. Zur, partial judgment of January 31, 1996). The rights ofRespondent 1 in the property were then sold to Respondents 3-7. The Appellants filed lawsuits to set aside the said judgment and for declaratory relief according to which they are the owners of the property (CF (Jerusalem Magistrates) 10386/96, Judge. R. Shamia); CF (Jerusalem District) 1264/97, Judge B. Okon, the claim was struck out on March 23, 2003). The Custodian, for his part, filed a claim for declaratory relief to the effect that the Alarja family's rights in Property 1 constituted absentees' property, and that the transactions made in regard to its part of the property were void (CF (Jerusalem District) 1504/96,  Judge A. Procaccia). The claim was dismissed further to a settlement that was formulated between the Custodian and Respondents 1-7, which was approved by the court on March 5, 2002). It should be noted that in the latter proceedings the Appellants originally joined the position of the Custodian, including the plea that the property was absentees' property, but they then withdrew that plea with the court's approval. We would further add that in the period during which the proceedings have been heard, Appellants 1, 3 and 4 have unfortunately passed away.

 

CA 2038/09

 

6.         CA 2038/09 concerns 0.84 acres of land in Abu Dis (hereinafter referred to as "Property 2"), on which there is a residential building which, in 1964, was converted to a hotel known as the Cliff Hotel (hereinafter referred to as "the hotel"). The property is in the territory to which the State of Israel's jurisdiction and administration were extended in 1967. Its original owner (hereinafter referred to as "the deceased") was a resident of Abu Dis and a national of Jordan. The Appellants own the rights in the property by virtue of inheritance and law. On July 24, 2003, the Custodian issued an absentee certificate under section 30 of the Law in respect of Property 2. Further thereto, the Appellants filed a claim in the Jerusalem District Court for the award of declaratory relief to the effect that the property was not "absentees' property". In the alternative, they applied for the property to be released or, in the further alternative, they asked that the absentee certificate issued in respect of it be declared void (CF 6161/04, Judge I. Inbar). It should be noted that the parties were originally at issue as regards the property's location in Israel, but in the course of the proceedings they agreed that the property has been in the area of Israel since 1967. The claim was dismissed on October 2, 2008. It was held that, at the determining time, the deceased was resident in Judea and Samaria, namely outside the area of Israel, about 300 meters from the hotel, and he was not a resident of East Jerusalem. Such being the case, it was held that the property was "absentees' property", both according to section 1(b)(1)(i) of the Law (because the deceased was a national of Jordan) and by virtue of section 1(b)(1)(ii) of the Law (as he was a resident of Judea and Samaria) (the section is quoted in para. 13 below). The court disagreed with the interpretation laid down in Dakak, according to which the Law does not apply to the properties in East Jerusalem of the residents of Judea and Samaria. In the court’s view, weight should be given to the difficulties involved in the authority’s treating the residents of Judea and Samaria as "absentees" for the purpose of implementing the Law, but not in regard to the Law’s incidence. In addition, it was noted that the pleas concerning the modus operandi of the Custodian under the Law are within the jurisdiction of the High Court of Justice rather than the District Court. Furthermore, the Appellants' plea that the Custodian was precluded from exercising his powers because of a representation that the State had made to the effect that the property was not in Israel, which led to a change of their position to their detriment, was dismissed. The second appeal before us (CA 2038/09) is brought against the judgment in CF 6161/04.

 

7.         It should incidentally be noted that since 2003 there have been various developments in respect to Property 2 due to its proximity to the security fence. In that connection, part of the property was demolished with the consent of the parties, and the security forces then seized possession of it by virtue of the Emergency Land Requisition (Regulation) Law, 5710-1949. In 2013, part of the land was expropriated for security purposes by virtue of the Land (Acquisition for Public Purposes) Ordinance 1943 (hereinafter: "the Acquisition Ordinance"). These matters, which are beyond the scope of these proceedings, were tried in various different legal proceedings (see HCJ 1622/13, judgment of February 12, 2014, Deputy President M. Naor, and Justices E. Rubinstein and D. Barak-Erez); HCJ 1190/14, judgment of March 18, 2014, Deputy President M. Naor, and Justices E. Rubinstein and Y. Danziger; and ALA 6895/04,judgment of November 16, 2004 on the application for leave to appeal against the District Court's judgment in CF 6161/04 on an application for a provisional injunction)).

 

8.         Incidental to the proceedings before us, on July 18, 2013, the Special Committee under section 29 of the Law (hereinafter: "the Special Committee") deliberated on the release of the two properties involved in the appeals. As regards Property 1 (the property involved in CA 5931/06), the Respondents, represented by the State Attorney (hereinafter: "the Respondents"), stated that the Custodian was no longer in possession of the land, but only the proceeds therefrom, because the property had been purchased by third parties "in market overt conditions" (para. 31(a) of the Respondents' application of October 5, 2014). The Special Committee recommended the release of those proceeds to whichever of the Appellants were residents of Judea and Samaria and still living. As regards the Appellants who had died while the proceedings were being heard, supplementary particulars were requested, and as regards the other members of the Alarja family it was recommended not to release the proceeds of the property. As regards Property 2 (the property involved in CA 2038/09), the Special Committee recommended the release in specie of the part that had not been requisitioned for the construction of the security fence, and to release the proceeds for the part requisitioned only to the owners who are residents of Judea and Samaria, who are the ones who had held the property continuously until it had been requisitioned. Under the circumstances, the Respondents argued that the appeals had become theoretical and they moved for their dismissal. The Appellants, for their part, stated that they insisted on the appeals. According to them, if their position on the basic question concerning the application of the Law in their case were accepted, then it would not have been appropriate from the outset to view the properties as "absentees' property", and the Special Committee's decision was ultra vires. In addition, the Appellants in CA 2038/09 pleaded that in light of the security forces' seizure of Property 2 for the construction of the security fence, the decision concerning the release of the property had no real meaning. In our decision of December 28, 2014 we dismissed the application to dismiss the appeals.

 

The Parties' Arguments

 

9.         In both the appeals before us, the Appellants assert that it was not appropriate to view the properties concerned as "absentees' property". For the sake of convenience, we shall cite their basic arguments with regard to the application of the Absentees' Property Law together. We shall then separately consider their individual arguments in respect of the properties in dispute. In principle, the Appellants assert that the Law should not be applied to property in East Jerusalem whose owners, beneficiaries or holders (hereinafter referred to as "the owners of the rights") are residents of Judea and Samaria. According to them, those properties merely became "absentees' property" because of the unilateral extension of the law of the State of Israel to the areas where they are located. This occurred without the owners moving from the spot, and while they were subject to the authority and control of Israel near their property. According to them, the purpose of the Law was to contend with the unique circumstances that prevailed at the time of the State's establishment, which are now different, and the legislature could not have envisaged the reality created further to the Six Day War. According to them, the residents of Judea and Samaria have nothing at all to do with the "absentees" at whom the Law was aimed. The Appellants state that the various attorneys general over the years were also cognizant of these difficulties.

 

            They argue that the Law should, therefore, be interpreted against the background of its purpose and the historical context in which it was enacted, in the spirit of the Basic Laws, and in recognition of the need to protect their property, such that its provisions will not apply to the said properties. They propose a "pragmatic" interpretation of section 1(b)(1)(ii) of the Law, by  which the properties are prima facie considered absentees' property (the section is quoted in para. 13 below). This section deals with anyone who at any time during the period prescribed in the Law was "in any part of Palestine[1] outside the area of Israel". According to the Appellants, "outside the area of Israel" should be read as "the area outside Israeli control". That is to say that "the area of Israel" should not be viewed as relating only to the area in which the law, jurisdiction and administration of Israel has been applied. In fact, their argument is that since Judea and Samaria have been under the effective control of the State of Israel since 1967, it should not be regarded as "outside the area of Israel" for the purpose of the Law, and section 1(b)(1)(ii) of the Law therefore does not apply to the residents of Judea and Samaria. In addition, the Appellants propose adopting the interpretation that the District Court applied in Dakak, which we shall discuss further (in para. 26 below). The Appellants also propose viewing "the area of Israel" within the meaning of section 1(b)(1)(ii) of the Law solely as the area in which the law of the State of Israel applied at the time of the Law's enactment. According to the argument, that area does not include new territory over which the law, jurisdiction and administration of Israel have been applied or which is held by Israel, unless the provisions of the Law have been expressly applied to the additional territory. In the Appellants' opinion, the interpretations propounded are not contrary to section 3 of the Legal and Administrative Matters (Regulation) Law [Consolidated Version], 5730-1970 (hereinafter referred to as "the Legal Regulation Law"), from which it emerges that the properties of East Jerusalem residents that are located in East Jerusalem are not to be regarded as "absentees' property". (Section 3(a) of the said Law provides that "a person who, on the day of the coming into force of an application of law order, is in the area of application of the order and a resident thereof shall not, from that day, be regarded as an absentee within the meaning of the Absentees' Property Law, 5710-1950, in respect of property situated in that area".) According to them, the said section deals only with the residents of East Jerusalem, where Israeli law has been applied, and a negative arrangement is not to be inferred therefrom in respect of residents who are under Israeli control in Judea and Samaria. They believe that there is no foundation for the distinction between residents of Judea and Samaria, who are under Israeli control, and the residents of East Jerusalem. Alongside this, the Appellants plead that the Custodian is interpreting the broad provisions of the Law in a discriminatory and degrading way. Thus, for example, according to them, on a strict interpretation of the Law, Jewish residents of Judea and Samaria and members of the security forces who are staying there are also "absentees", but the Law is only applied to Arab residents of Judea and Samaria.

 

10.       The Appellants assert that applying the interpretation proposed leads to the conclusion that the properties involved in the appeals are not absentees' property. The Appellants in CA 5931/06 argue that the refusal to register their rights in Property 1 in the Land Registry, while the rights of the Jewish purchasers have been registered, amounts to discrimination. Moreover, they make arguments in respect of the conduct of the Custodian in their case, including in respect of the difference in his attitude toward them, compared with his attitude toward the Jewish purchasers. Consequently, they ask that we find that Property 1 is not absentees' property, or alternatively, that we order its release under section 28 of the Law, if it is indeed held that absentees' property is involved. In any event, they explain that if it is held that the property is not absentees' property, it will be necessary to conduct a factual enquiry with regard to the litigants' title thereto. The Appellants in CA 2038/09 plead that Property 2 was requisitioned contrary to the Attorney General's directives in  this regard. In addition, they wonder why it was necessary to make use of "such a Draconian and improper law", when he could have satisfied himself with the issuing of a seizure order for security purposes, the duration and purposes of which are limited, as was indeed later done (para. 29 of the summations of January 26, 2010). Moreover, they make various different arguments concerning the way in which the property was requisitioned and about the real purpose of the move. In that connection they plead laches and the Respondents' failure to act in respect of the property because of the representation that they made, according to which the property was in Judea and Samaria rather than Israel, which led to a detrimental change in the position of the Appellants in CA 2038/09. They also complain of the determination that the District Court is not competent to treat of the way in which the Law is implemented. In view of all the foregoing, they ask that we quash the requisition of Property 2 by virtue of the Law, and return it to them.

 

11.       The Respondents' position is that the Law applies to properties in East Jerusalem of the residents of Judea and Samaria. According to them, "area of Israel", in the sense of the Law, relates only to territory to which Israeli law has been applied. They warn against the serious consequences involved in adopting the interpretive approach advanced by the Appellants, which is similar to the interpretation laid down by the District Court in Dakak. According to them, the term "area of Israel" is mentioned both in respect of the location of the particular property (section 1(b)(1) of the Law) and in respect of the location of the owners of the rights in the property (section 1(b)(1)(ii) of the Law). Hence, the interpretation proposed might lead to properties in Judea and Samaria being regarded as "absentees' property" as well, when their owners are included in one of the other alternatives of section 1(b)(1) of the Law. According to them, the presumption is that this is the position in the case of many of the residents of Judea and Samaria, who were Jordanian nationals. Consequently, they assert that the Appellants' proposal will in any event be of no help to them. In addition, the Respondents object to the proposal to interpret the "area of Israel" as a "photograph" of the situation that existed at the time of the Law's enactment. According to them, there is no basis for that in the Law, and it is contrary to its purpose – to enable the transfer of ownership to the Custodian of any property situated in the area of the State and belonging to an "absentee", to be used for the development of the country. They also mention that the Law was enacted when the final boundaries of the State had not yet been formulated (and in fact the provision of section 1(b)(1)(ii) of the Law already appeared in the Absentees' Property Emergency Regulations, 5709-1948 of December 12, 1948 (hereinafter referred to as "the Emergency Regulations") which applied during the War of Independence and preceded the Law). Alongside this, the Respondents argue that a restrictive policy should be adopted when implementing the Law. According to them, the powers in the Law should not be exercised in respect of the properties at issue, unless the Attorney General's approval is first obtained. They contend that over the years a restrictive policy has indeed been adopted in the implementation of the Law, in accordance with the position of the Attorneys General. According to the Respondents, looking to the future, this modus operandi will lead to results similar to those that will be obtained as a result of finding that the Law does not apply in the instant cases. However, adopting it, as distinct from finding that the Law does not apply, is essentially of significance in respect of the past. This is because a finding that the Law does not apply in these cases means that all the acts that have been done in respect of properties of that type are void, with the substantial difficulties involved therein that they mention. In addition, the Respondents reject the Appellants' argument of discrimination in the implementation of the Law. According to them, the Custodian adopts a standard policy in respect of everyone lawfully moving outside the area of Israel, regardless of his ethnic origin. Thus, for example, the Law is not implemented in respect of State nationals, be they Jews or Arabs, even where the strict implementation of its provisions would necessitate an application to release their property.

 

            As regards the properties in dispute, the Respondents argue that, under the circumstances, the Special Committee's decision provides a proper answer to the Appellants. The Respondents reject the pleas of discrimination made in CA 5931/06 and emphasize that the improper registration in the past of the rights of Jewish purchasers does not justify similar registration now. According to them, until the 1970s the Custodian used to permit the sale of absentees' property to Israelis in order to facilitate matters for the residents of Judea and Samaria and the Gaza Strip, but that policy has been changed. In addition, they explain why the Custodian has not acted to cancel registration of the transactions made by the Jewish purchasers and they state that they did in the past act against the transfer of rights in Property 1 to the Respondent 1, who is a Jewish national of Israel. In addition, the Respondents plead that ruling on the competing rights in respect of the property involved in CA 5931/06 necessitates the review of factual and legal arguments that were not considered at the trial instance in view of its conclusion that Property 1 is "absentees' property".

 

12.       The other Respondents in CA 5931/06, the Jewish purchasers of the rights in Property 1, join in the Custodian's position on the question of principle with regard to the application of the Law. As regards the interpretation proposed by the Appellants, they state that since the Oslo Accords, effective control of a large proportion of Judea and Samaria is not held by the State of Israel and they argue that the said interpretation would necessitate equating the status of Judea and Samaria's residents with that of Israeli residents in other respects. They emphasize that they acquired the rights in Property 1 in good faith and for consideration, and they comment that the Appellants' domicile has never been established. According to them, the Appellants in CA 5931/06 are undermining the judgments that have been awarded in respect of Property 1, and their conduct in the various proceedings in respect thereof amounts to an abuse of process, inter alia in view of the change in their versions on the question of absenteeism.

 

Discussion and Decision

 

13.       The proceedings before us concern, as aforesaid, the question of whether properties in East Jerusalem, the owners of the rights in which are residents of Judea and Samaria, are "absentees' property" under the Absentees' Property Law. We would immediately emphasize that these proceedings address only such properties and not any other type of property. The point of departure for the discussion is the Absentees' Property Law, and we shall therefore commence by presenting its main provisions. "The portal" to the Law is contained in the definitions of "absentee" and "absentees' property". "Absentees' property" is defined in section 1(e) of the Law as follows:

 

            "'Absentees' property' means property, the legal owner of which, at any time during the period between Kislev 16, 5708 (November 29, 1947) and the day on which a declaration is published under section 9(d) of the Law and Administration Ordinance, 5708-1948, that the state of emergency declared by the Provisional Council of State on Iyar 10, 5708 (May 19, 1948) has ceased to exist, was an absentee or which, at any time as aforesaid, an absentee held or enjoyed, whether by himself or through another; but it does not include movable property held by an absentee and exempt from attachment or seizure under section 3 of the Civil Procedure Ordinance, 1938" [emphasis added – A.G.].

 

            The term "absentee" is defined in section 1(b) of the Law as follows:

 

             "(b) 'Absentee' means –

 

            (1) A person who, at any time during the period between Kislev 16, 5708 (November 29, 1947) and the day on which a declaration is published, under section 9(d) of the Law and Administration Ordinance, 5708-1948 that the state of emergency declared by the Provisional Council of State on Iyar 10, 5708 (May 19, 1948) has ceased to exist, was a legal owner of any property situated in the area of Israel or enjoyed or held it, whether by himself or through another, and who, at any time during the said period –

 

                        (i) was a national or citizen of the Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen, or

 

                        (ii) was in one of these countries or in any part of Palestine outside the area of Israel, or

 

                        (iii) was a Palestinian citizen and left his ordinary place of residence in Palestine

 

                                    (a) for a place outside Palestine before Av 27, 5708 (September 1, 1948); or

 

                                    (b) for a place in Palestine held at the time by forces which sought to prevent the establishment of the State of Israel or which fought against it after its establishment;"

 

            It should be noted as regards the mention of "Trans-Jordan" in sections 1(b)(1)(i) and (ii) that in 1994 the legislature excluded from the application of the Absentees' Property Law certain properties, the owners of the right in which where nationals or citizens of Jordan. This was further to the peace agreement with Jordan (see section 6 of the Implementation of the Peace Agreement between the State of Israel and the Hashemite Kingdom Law, 5755-1995 (hereinafter referred to as "the Peace Agreement with Jordan Law")).

 

14.       According to the Absentees' Property Law, "absentees' property" is vested in the Custodian and the "absentees" lose their rights in it (see CA 8481/05 Lulu v. Custodian of Absentees' Property, para. 7 (February 28, 2007) (: the Lulu case)). The vesting of the property in the Custodian in accordance with the Law is not dependent upon his doing any act, and the rights in it automatically pass to him from the moment that the conditions for its being "absentees' property" are fulfilled (section 4 of the Law; CA 109/87 Makura Farm Ltd v. Hassan, IsrSC 47(5) 1, 29 (1993) (hereinafter: the Makura Farm case); CA 427/71 Faraj v. The State of Israel, IsrSC 27(1) 96, 101 (1972) (hereinafter:  theFara case"), in which it was stated that since automatic vesting is involved, the Custodian might not even be aware that a property has been vested in him; CA 4630/02 The Custodian of Absentees' Property v. Abu Hatum, para. L(3) (September 18, 2007) (hereinafter: the Hatum case; CA 8753/07 The Estate of Atalla Halil Bahij, Deceased v. Custodian of Absentees' Property, para. J (November 16, 2010)). It should be emphasized that in view of the prolonged state of emergency, which is still in force, the application of the Law continues and its operation has not yet ended. That is to say that anyone who has fulfilled or does in future fulfil the conditions for the definition of an "absentee" during the relevant period (namely since 1947 until the future end of the state of emergency) will be regarded as an "absentee" and his property in Israel will be vested in the Custodian. That is unless he has been excluded from the scope of the Law.

 

            The status of the Custodian in respect of absentees' property is the same as was that of the owner of the property, and he is entrusted with its management, care and supervision (section 4 of the Law). To that end, very extensive powers have been granted to him (see HCJ 6/50 Freund v. Supervisor of Absentees' Property, Jerusalem, IsrSC 4 333, 337 (Justice M. Dunkelblum) (1950) (hereinafter: the Freund case); Minutes of Meeting No. 123 of the First Knesset, 950, 956 (March 7, 1950) (hereinafter: the Minutes 123); Menahem Hoffnung, Israel – State Security Versus the Rule of Law, 162 (5761) (Hebrew) (hereinafter: Hoffnung)). In this connection it is provided that the Custodian may incur expenses and make investments in order to safeguard, maintain, repair and develop the property (section 7 of the Law); continue the management of a business on behalf of the absentee (section 8 of the Law, and sections 24 and 25, which concern a partnership of which an absentee is a member and properties of which absentees are co-owners); order the eviction of someone who is occupying the property without any right (section 10 of the Law); order the discontinuance of construction on the property and its demolition (section 11 of the Law). In addition, the Law requires that absentees' property be handed over to the Custodian (section 6 of the Law) and information in respect of it provided (section 21 of the Law). The Law imposes restrictions and prohibitions concerning the doing of various different acts with the property without the Custodian's consent (section 22 of the Law), and it provides that certain acts that have been done in respect of the property are null and void (section 23 of the Law). In addition, certain acts that have been done contrary to the Law are regarded as criminal offences, the penalty for which might amount to up to two years' imprisonment (section 35 of the Law). Although the Law restricts the Custodian's ability to sell and grant a long lease of immovable property that has been vested in him (section 19), it does permit him to transfer it to the Development Authority, subject to certain reservations. In this connection it should be noted that in an agreement that was made on September 29, 1953 between the Custodian and the Development Authority, all the immovable property vested in the Custodian was transferred to the Authority (according to The Government Yearbook 5715, 47). Similarly, the Law limits the liability that the Custodian bears for his acts (sections 16 and 29P of the Law), and lays down lenient evidential arrangements for him (section 30 of the Law; Makura Farm, pp. 12-13). The Law further provides that transactions made between the Custodian and another person in good faith will not be invalidated even if it is established after the fact that the property was not vested property (section 17 of the Law). Alongside this, the Law lays down various mechanisms that are apparently aimed at mitigating its serious effects. Thus, the Custodian has been authorized, in certain circumstances, to "relieve" a person of his "absenteeism" (section 27 of the Law) and to release properties that have been vested in him (sections 28-29 of the Law; for the significance of such release, see CA 263/60 Kleiner v. Director of Estate Tax, IsrSC 14 2521 (1960) (hereinafter: the Kleiner case; for further discussion of several of the decisions that have been given by the Special Committee, including its recommendation for a sweeping release of properties in certain cases, see Haim Zandberg, Israel Land, Zionism and Post-Zionism, 83-83 (2007) (Hebrew)).

 

15.       As we see, the Law grants the Custodian very extensive powers and its overall provisions create a far-reaching arrangement, at the center of which is the expropriation of the rights in absentees' property from the owners and their vesting in the Custodian. This arrangement should be understood against the special circumstances that led to its enactment. At the end of the War of Independence, and in fact even during it, the young State of Israel faced a complex, new reality. This was, inter alia, due to the enlarged area under its control and the mass departure of Arab residents, leaving behind them extensive property, abandoned and vulnerable to intrusion and unruly squatting, on the basis of "might makes right" (see Eyal Benvenisti and Eyal Zamir, “Private Property In the Israeli-Palestinian Peace Settlement”, Research of the Jerusalem Institute for Israel Studies, 77, 7-9 (1998) (Hebrew) (hereinafter: Benvenisti and Zamir, Private Property)). These challenges necessitated a rapid legal answer that would make it possible to settle the rights in, and deal with, those properties. Indeed, in the first years of the State a series of legal arrangements was laid down to contend with the complex reality that had arisen (for further reading, see for example Shlomo Ifrach, “Legislation Concerning Property and Government in the Occupied Territories”, 6 Hapraklit 18 (1949) (Hebrew); Hoffnung, pp. 159-168; Eyal Zamir and Eyal Benvenisti, "Jewish Land in Judea, Samaria, the Gaza Strip and East Jerusalem”, Research of the Jerusalem Institute for Israel Studies, 52, 28-29 (1993) (Hebrew) (hereinafter: Zamir and Benvenisti, Jewish Land)). One of the major pieces of legislation enacted in this context is the Absentees' Property Law, which was enacted in 1950 and replaced the Emergency Regulations that had been promulgated in this respect and that applied during the War of Independence.

 

16.       The Law was designed to regulate the administration of "absentees'" property by the State authorities, and make it possible to safeguard it against lawlessness (see, Minutes of Meeting No. 119 of the First Knesset, 872 (February 27, 1950) (hereinafter:  Minutes 119); CA 58/54 Habab v. Custodian of Absentees' Property, IsrSC 10 912, 918 (1956); Freund, p. 337). The purpose of the Law was not expressly defined in it and it did not prescribe for whose benefit "the absentees' property" should be safeguarded (see Minutes 123, p. 952; Shlomo Ifrach, “Thoughts on the Absentees' Property Law, 5710-1950”, 9 HaPraklit 182 (5713) (Hebrew)). The case law has held that the purpose of the Law is merely to safeguard the property for the benefit of its absentee owners, but it is also aimed at achieving the State's interests in the property, including, so it has been held, "the ability to utilize it to promote the country's development, while preventing its exploitation by anyone who is an absentee within the meaning of the Law, and the ability to hold it (or its proceeds) until the formulation of political arrangements between Israel and its neighbors, in which the fate of the property will be decided on the basis of reciprocity between the countries" (HCJ 4713/93 Golan v. Special Committee under Section 29 of the Absentees' Property Law, IsrSC 48(2) 638, 644 (1994) (hereinafter: the Golan case). For a discussion of the Law's objectives, see also CF (Haifa District) 458/00 Bahai v. Custodian of Absentees' Property, para. 26 (Judge I. Amit) (September 19, 2002) (an appeal was filed against the judgment, but the judgment in the appeal did not require an analysis of the Law's purpose (CA 9575/02 Custodian of Absentees' Property v. Bahai (July 7, 2010) (hereinafter: the Bahai case)). This approach is also consistent with statements made at the time the Law was enacted (see Minutes 119, pp. 869-870).

 

            It should be noted that the wording and title of the Law prominently emphasize the absence of the property owners (the "absentees"). Nevertheless, the background that led to its enactment and the nature of the arrangements prescribed in it might indicate that, in fact, the Law sought to determine the legal position in respect of the properties in Israel of nationals and residents of the enemy states. In any event, it appears that the Court has gained this impression in several cases dealing with these matters (see Golan, p. 645; HCJ 99/52 Anonymous v. Custodian of Absentees' Property, IsrSC 7 836, 839 (1953) (hereinafter: the Anonymous case); Kleiner, p. 2544 (per Justice A. Witkon), where it was stated that the Law is similar in character to the legislation on trade with the enemy, the consequence of which is the expropriation of the ownership of, and rights in, the property and their vesting in the Custodian. Support for this concept can also be found in the statement by the Minister of Justice, D. Libai, in the debate on the Peace Agreement with Jordan Bill (Minutes of Meeting No. 312 of the 13th Knesset, 5658 (January 23, 1995) (hereinafter: Minutes 312)). See also Benvenisti and Zamir, Private Property, pp. 13-14; para. 64 of the notice of appeal dated July 13, 2006 in CA 5931/06. Nevertheless, in the Appellants' summations in CA 2250/06 (the Respondents herein) to which the latter referred, it was asserted that the definition of "absentee" in the Law does not necessarily reflect a person's connection with an enemy state).

 

The Broad Application of the Absentees' Property Law

 

17.       Against the background of the exceptional circumstances in which the Law was enacted, it can perhaps be understood why it is worded so sweepingly and strictly. In any event, the way it is drafted, and especially the broad definitions of its underlying terms – with the emphasis on "absentee", "property" and "absentee property" – lead to the very extensive application of the Law (see HCJ 518/79 Cochrane v. Committee under Section 29 of the Absentees' Property Law, 5710-1950, IsrSC 34(2) 326, 330 (per Justice H. Cohn) (1980) (hereinafter: the Cochrane case; see also Minutes 123 and Minutes 119, pp. 870-872, which discussed the problems involved in the broad definition of "absentee", which embraces very many cases). Indeed, about 35 years ago this Court indicated that the broad definition of "absentee" is likely to lead to the Law's catching more and more people in its net, sometimes unnecessarily and contrary to its purpose. In the words of Justice H. Cohn, in Cochrane (p. 330):

 

            "In the geopolitical circumstances that existed upon the establishment of the State and at the time of the Law's enactment, it was necessary to define 'absentee' very broadly and sweepingly – despite the risk that the definition would include people who, in fact, had no legal connection with Israel's enemies, physically, ideologically or otherwise. And since the definition remains in force until the end of the state of emergency that has prevailed in Israel since the establishment of the State (section 1(b)(1) of the Law), innocent citizens who have nothing to do with absenteeism might frequently be added to the multitude of 'absentees' as defined in the Law (for example someone who is in part of 'Palestine' outside the area of Israel, - ibid., para. (ii))".

 

18.       The Law's definitions of the various terms are likely to lead to rigid results that are inconsistent with common sense or even the purpose that the Law was intended to serve. Let us demonstrate this by means of several examples – and it should be emphasized that I do not mean to lay down strict rules in respect of the cases that will be referred to,  which are cited merely for the purposes of illustration. According to the Law, it suffices if - at any time in the period between November 29, 1947 and the end of the state of emergency that was declared by the Provisional Council of State in 1948 – the owner of the rights fulfilled one of the alternatives in section 1(b)(1) of the Law (see sections 1(b) and 1(e) of the Law) for property that is in the area of Israel to be regarded as absentees' property. As aforesaid, since a declared state of emergency has existed in Israel ever since the State's establishment, any property in Israel that has been purchased in the last dozens of years by an "absentee" is, according to the wording of the Law, absentees' property. For example, a property in Israel that is purchased today by a national or subject of any of the countries mentioned in section 1(b)(1) of the Law (other than Jordan, as mentioned at the end of para. 13 above) will be regarded as "absentees' property" and immediately be vested in the Custodian. The self-evident difficulty involved in such a situation is aggravated in view of the broad definition of "property" in the Law, which includes "immovable and movable property, monies, a vested or contingent right in property, goodwill and any right in a body of persons or its management" (excluded from "absentees' property" are "movable property held by an absentee and exempt from attachment or seizure under section 3 of the Civil Procedure Ordinance, 1938" (section 1(e) of the Law)). As prescribed, "property" includes, among other things, a right to the repayment of a debt, an obligatory right to receive land, bearer shares and also contractual rights and any right that is enforceable by a lawsuit (see Bahai, paras. 7-9 and the references there). One has to wonder about the logic of the result whereby a debt that is due to an "absentee" in respect of a transaction made by him in relation to property in Israel, for example, will automatically be vested in the Custodian (see MF 89/51 Mituba Ltd v. Kazam, IsrSC 6 4 (1952), where it was held that a debt might be absentees' property. See also CA 35/68 Mualem v. Custodian of Absentees' Property, IsrSC 22(2) 174 (1968) (hereinafter: the Mualem case), which concerned bills of exchange received further to a transaction made in Iraq that were endorsed by a resident of Iraq in favor of an Israeli national. It was stated in the judgment that when the bills, which were the property of an Iraqi resident, arrived in Israel they became absentees' property (ibid., pp. 176-177)). In addition, the simple language of the Law might lead to the conclusion that the absenteeism of the holder of any proprietary right in property suffices to make it "absentees' property". This is so even if the other holders of the rights therein are not absentees, and even if his right is "inferior" to their right. Thus, for example, the very fact that someone who "enjoyed" the property was an absentee apparently suffices for it to be regarded as "absentees' property", even if its owner is not an absentee (see the Makura Farm case, p. 15).

 

            Other difficulties arise in view of the fact that "absentee" is an ongoing "status" that has no end (unless expressly otherwise prescribed or a step is initiated to release the property or its owners from their absenteeism. See CA 110/87 Elrahim v. Custodian of' Absentees' Property (August 22, 1989) (hereinafter: the Elrahim case)). Properties in Israel of whoever has fallen within the scope of the conditions for "absentee" at any time in the period between the end of 1947 and the end of the state of emergency, which is still continuing as aforesaid, are likely to be regarded as "absentees' property" and be denied him. As aforesaid, there is no automatic release from this situation, apart from a few exceptions that have been specifically defined in the Law. For example, a person will be regarded as an absentee merely because, at some stage during the said period, he was a national or citizen of Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen or "was" there (as regards Trans-Jordan, see the end of para. 13 above). Hence, according to a strict interpretation of the Law, the properties in Israel of immigrants from Egypt, Iraq or Yemen that were purchased by them before or after they immigrated to Israel, are "absentees' property" (and indeed, that was the case in the Faraj case; see also Mualem. Nevertheless, it does appear that section 28A of the Law, which is mentioned in the next paragraph, resolves that difficulty, at least in respect of properties that have been purchased since arrival in Israel). That is the law, at least prima facie, in respect of the properties in Israel of all those who have visited the said countries, regardless of the purpose or length of the visit. Thus, for example, anyone who went to those places on behalf of the State, for example soldiers in battle, are likely to be regarded as "absentees" (reality has proven that the question is not theoretical; see the Anonymous case, in which a Palestinian citizen, who left Israel for an enemy country as an emissary of one of the State authorities, was regarded as an "absentee"!!). Is it reasonable or acceptable that in the circumstances described, those people should lose their rights in their property in Israel?!

 

19.       It should be noted that a solution has been provided in the Law for at least some of the difficulties arising from its broad wording. A salient example is the possibility of releasing absentees' property (sections 28-29 of the Law) and giving written confirmation that a particular person is not an "absentee" (section 27 of the Law. For a discussion of whether the section applies where a person can be defined as an absentee under section 1(b)(1)(iii) of the Law and also in accordance with one of the other alternatives prescribed in the section, see Anonymous and Bahai, paras. 11 and 13). It should be noted that according to Justice H. Cohn in the Cochrane case, those powers are the solution to the difficulties involved in the definition of "absentee" mentioned in the previous paragraphs (ibid., p. 330) (this was the position of the Court in Elrahim as well). Another example is the provision of the Law that was added in 1951, the purpose of which was to enable "absentees" who are duly present in the area of Israel to purchase rights in properties that did not constitute absentees' property on the date the Law took effect (section 28A of the Law; see Minutes of Meeting No. 234 of the First Knesset, 1254, (March 6, 1951)). Nevertheless, the Law is still far from being free of difficulties. One of the reasons is the fact that in the many years since the Law was enacted, significant geopolitical changes have occurred in the environment of the State of Israel, including Israel's wars and diplomatic arrangements that have been made with some of its neighbors. At the same time, substantial changes have also been made in Israeli law's treatment of human rights. In fact, today's circumstances are materially different from those that existed at the time of the Law's enactment some 65 years ago. Nevertheless, and despite the fact that the Law's application has been continuing all that time, not all the necessary adjustments to the changing times and circumstances have been made. This finds conspicuous expression with regard to property located in East Jerusalem, and in particular, property owned by residents of Judea and Samaria, as is the case in the appeals  before us. Before we go on to consider the specific problems arising in these cases, another note is obliged.

 

20.       In view of the foregoing, an argument might be made with regard to the invalidity of some of the Law's provisions for constitutional reasons. In other words, it could be argued that the provisions of the Law infringe the absentees' rights and in particular their constitutional right to property (section 3 of Basic Law: Human Dignity and Liberty), and that it does not fulfil the criteria that have been laid down in case law on the limiting paragraph of the Basic Law (section 8). In my opinion, it is certainly possible that at least some of the arrangements in the Law, were they enacted today, would not meet the constitutional criteria. Nevertheless, in the instant case, the provisions of the limiting paragraph are not such as to serve or to alter the conclusion with regard to the application of the Law in the cases under consideration here. This is in view of the “Validity of Laws” rule in section 10 of Basic Law: Human Dignity and Liberty, according to which the Basic Law does not affect the validity of any law that existed prior to its entry into force. This provision does not make it possible to find that any provision of the Law is void (see, for example, CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589, 632-633 (per Justice T. Strasberg-Cohen), 642-643 (per Justice M. Cheshin), 653 (per President A. Barak (1995) (hereinafter: the Ganimat case); HCJ 4264/02 Ibillin Breeders Partnership v. Ibillin Local Council, para. 10 (December 12, 2006)).

 

The Absentees' Property Law and the Properties in East Jerusalem

 

21.       Section 1(b) of the Law imposes two conditions for a person to be an "absentee": the first relates to the particular property and contains the requirement that the property is situated "in the area of Israel". In this respect, "the area of Israel" has been defined as an area where the law of the State of Israel applies (section 1(i) of the Law; for a discussion of that term, see Benjamin Rubin, “The Sphere of the Law's Application, the Area of the State and Everything in Between”, 28 Mishpatim, 215, 226-227 (5755) (Hebrew) (hereinafter: Rubin)). The second condition relates to the owner of the rights in the property (the "absentee"). The "absentee" is someone who falls within one of the alternatives of section 1(b)(1) of the Law. The first alternative is defined according to the person's nationality or citizenship, and it concerns the citizens or nationals of Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen (section 1(b)(1)(i) of the Law). The second alternative is defined on the basis of the location of the "absentee" and relates to anyone who was in any of those countries or "in any part of Palestine outside the area of Israel" (section 1b)(1)(ii) of the Law). The third alternative relates to Palestinian citizens who left their ordinary place of residence in Palestine for a place outside Palestine in the circumstances set out in section 1(b)(1)(iii) of the Law (section 27 of the Law nevertheless lays down cases in which an absentee will be exempted from his "absenteeism" according to this alternative; for the controversy that arose between Justices M. Landau and Y. Olshan in respect of this section and the characteristics of the different alternatives, see the Anonymous case).

 

22.       With regard to properties that are situated in East Jerusalem, until 1967 they were not "in the area of Israel", within the meaning of the Absentees' Property Law, namely the area in which the law of the State of Israel applies (section 1(i) of the Law). Consequently, until then they were not absentees' property. That changed with the Six Day War. In the War, East Jerusalem passed into the control of the State of Israel, and on June 28, 1967 the application of Israeli law, jurisdiction and administration was declared (see Order No. 1 that was promulgated by virtue of section 11B of the Law and Administration Ordinance, 5708-1948 (hereinafter: "the Law and Administration Ordinance"). See also section 5 of Basic Law: Jerusalem, Capital of Israel, which prescribes that East Jerusalem is included within the boundaries of the Jerusalem Municipality. See also HCJ 282/88 Awad v. Prime Minister and Minister of the Interior, IsrSC 42(2) 424, 429 (1988) (hereinafter:as the Awad case; CA 4664/08 Mishal v. Custodian of Absentees' Property, para. 8 (hereinafter: the Mishal case); HCJ 1661/05 Hof Aza Regional Council v. Knesset, IsrSC 59(2) 481, 512-513 (2005) (hereinafter:the Hof Aza Council case); Rubin, pp. 231-234; Benvenisti and Zamir, Private Property, pp. 23-24). In view of this, property in East Jerusalem must, of course, be regarded as situated in "the area of Israel" for the purpose of the Absentees' Property Law (see CA 54/82 Levy v. Estate of Afana Mahmoud Mahmoud (Abu-Sharif), Deceased, IsrSC 40(1) 374, 376 (1986) (hereinafter: the Levy case); HCJ 98/68 Hadad v. Custodian of Absentees' Property, IsrSC 22(2) 254 (1968)).

 

23.       Consequently, all that remains for the owners of rights in property in East Jerusalem to be regarded as "absentees" is for one of the alternatives in section 1(b)(1) of the Law to be fulfilled. In view of the broad definitions in the Law, and given the fact that many of the residents of East Jerusalem were nationals or citizens of Jordan before 1967, it appears that this condition is fulfilled in many cases, and the properties of those people in East Jerusalem should be regarded as "absentees' property". In this context it should be borne in mind that after the Six Day War not only the property in East Jerusalem passed into the area of Israel and under its control, but also the local residents (the residents of East Jerusalem who were included in the census that was conducted in June 1967 obtained the status of permanent residents in Israel and could, in certain conditions, obtain Israeli nationality). As a result, quite a strange situation arose in which the Law applied both to properties and their owners in "the area of Israel". In fact, a person could, for example, remain at home without taking any action or changing his situation or the state of the property, and his home, where he resided in East Jerusalem, became "absentees' property". This difficulty was resolved in respect of the residents of East Jerusalem with the enactment of the Legal Arrangements Law in 1970 (or to be more precise, in 1968, upon enactment of the Legal and Administrative Matters (Regulation) Law, 5728-1968, which preceded it). Section 3 of the 1970 statute prescribes as follows:

 

                        "(a)     A person who on the day of the coming into force of an application of law order [namely an order under section 11B of the Law and Administration Ordinance – A.G.] is in the area of application of the order and a resident thereof shall not, from that day, be regarded as an absentee within the meaning of the Absentees' Property Law, 5710-1950, in respect of property situated in that area.

 

(b)       For the purposes of this section, it shall be immaterial if, after the coming into force of the order, a person is, by legal permit, in a place his presence in which would make him an absentee but for this provision".

 

            The section therefore excludes whoever were residents of East Jerusalem on June 28, 1967 – when Order No. 1 was issued, whereby the law, jurisdiction and administration of the State of Israel were applied to East Jerusalem – from the definition of "absentees" in respect of their property in East Jerusalem (see Mishal, para. 8; Awad, p.429; Benvenisti and Zamir, Private Property, p. 14, 26-28; Zamir and Benvenisti, Jewish Land, p. 87). In addition, the Absentees' Property (Compensation) Law, 5733-1973 (hereinafter: "the Compensation Law") was later enacted to enable residents of Israel, including the residents of East Jerusalem, who are "absentees", to claim compensation for certain property vested in the Custodian (see Zamir and Benvenisti, Jewish Land, pp. 90-91; Benvenisti and Zamir, Private Property, pp. 14, 28-29).

 

The Case of Judea and Samaria Residents

 

24.       Let us now turn to the case before us, of residents of Judea and Samaria who have rights in property in East Jerusalem. As aforesaid, for the purpose of the Law, these properties are located in the area of Israel. The first condition for their "absenteeism" is therefore fulfilled. The second condition is that the owners of the rights in them fall within the scope of one of the alternatives of section 1(b)(1) of the Law. The alternative relevant to the instant case is that mentioned at the end of section 1(b)(1)(ii) of the Law, that an absentee is someone who at any time during the relevant period "was… in any part of Palestine outside the area of Israel." In Judea and Samaria, unlike East Jerusalem, the law, jurisdiction and administration of the State of Israel have never been applied (see, for example, HCJ 390/79 Dwikat v.  Government of Israel, IsrSC 34(1) 1, 13 (1979); Hof Aza Council, pp. 514-560; and also Rubin, pp. 223-225). It is, of course, therefore not the "area of Israel", which is defined in section 1(i) of the Law as "the area in which the law of the State of Israel applies". Some 30 years ago, this Court ruled in Levy that Judea and Samaria is "part of Palestine" within the meaning of section 1(b)(1)(ii) of the Law (ibid., p 381 (Justice A. Halima); cf Crim. App. 5746/06 Abbass v. State of Israel, paras. 5, 8-10 (July 31, 2007), where the meaning of the same expression in the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 was considered in the particular context of that statute). It should be noted that in Levy the Court dismissed the plea that since Judea and Samaria is actually occupied by the IDF, it should be regarded as held territory in accordance with the Area of Jurisdiction and Powers Ordinance, 1948 and therefore also as an "area of Israel" for the purpose of the Absentees' Property Law. The Court's conclusion in the Levy case was that properties in East Jerusalem that were owned by the residents of Judea and Samaria should be regarded as "absentees' property". This concept is also reflected in later case law of this Court (see the Golan case, where the Court acted on the assumption that such property is "absentees' property").

 

25.       The said conclusion with regard to property in East Jerusalem does not derive merely from the wording of the Law. It appears that this result also reflects the intention of the legislature, at least since the Legal Regulation Law was enacted. As aforesaid, while the residents of East Jerusalem were excluded by the Legal Regulation Law from the application of the Absentees' Property Law in respect of property located there, a similar step was not taken in respect of the residents of Judea and Samaria. In my opinion, the significance of that cannot be avoided. The very fact that the legislature considered it necessary to prescribe an express arrangement excluding the residents of East Jerusalem from the scope of the Absentees' Property Law (from the date prescribed) demonstrates that, according to it, without such a provision the Law would have applied to them. In other words, this indicates that in its opinion, the Law also applies where the particular property or the owner of the rights in it became "absentee" after the Law's enactment, namely after 1950. This assumption also finds expression in the need that the legislature saw expressly to exclude certain properties from the application of the Absentees' Property Law further to the peace agreement made with Jordan in 1994 (see section 6 of the Peace Agreement with Jordan Law; and also Minutes 312, p. 5658. See also Abu Hatum, para. K.) This approach is in fact consistent with the view that the application of the Law is ongoing and has not yet reached an end (see also Golan, p. 645, where it was stated that "the assumption embodied in the Law is that the fate of absentees' property will be determined in future as a possible consequence of political settlements between the State of Israel and its neighbors". It should also be noted that at the time the Law was enacted, it was stated that it was necessary to enact a permanent law instead of the Emergency Regulations because "it was clear to the members of the committee that even after the emergency ends we shall have to deal with the absentees' property…" (Minutes 119, p. 868)). In view of the foregoing, in my opinion it is not possible to accept the argument that the definition of "the area of Israel" in the Law meant only the area in which Israeli law applied at the time of the Law's enactment, something of a "photograph" or freeze of a given situation that cannot change with time. The same applies to the argument that an express provision of the Law is necessary for it to apply to territory added to the area of the State of Israel after its enactment. The foregoing examples might demonstrate that, in truth, the opposite is the case. In addition, the failure of the legislature to prescribe a broader arrangement in the Legal Arrangements Law or another statute reflects, as I understand it, a conscious decision not to exclude others from the application of the Absentees' Property Law, like for example the residents of Judea and Samaria. That is also the impression that was gained by this Court in Levy (see ibid., pp. 382-383 (per Justice A. Halima). That is also the opinion of the learned authors Zamir and Benvenisti (see Benvenisti and Zamir, Private Property, p. 27; Zamir and Benvenisti, Jewish Land, p. 87)). Accordingly, I do not consider it possible to depart from the case law according to which the Absentees' Property Law does indeed apply to property in East Jerusalem, whose owners are residents of Judea and Samaria. It appears that any other finding would be contrary to the plain meaning of the Law and the intention of the legislature.

 

26.       In this regard, a few words should be devoted to the Jerusalem District Court's judgment in the Dakak caseJudge B. Okon). In that judgment the court considered the difference between the reality in which the Absentees' Property Law was enacted and the circumstances that have arisen in Judea and Samaria following the Six Day War. According to him, "it is difficult to conceive" that the Law should be applied to residents who are under "effective Israeli control" rather than hostile control (ibid., paras. 4-5 of the judgment). Such being the case, it was held that section 1(b)(1)(ii) of the Law, which concerns a person who is "in any part of Palestine outside the area of Israel", does not apply to a resident of areas "that are actually subject to Israeli military control, as distinct, for example, from areas under the military control of a country mentioned in section 1(b)(1)(i) of the Law" (ibid., para. 6). An appeal was filed against the said judgment (CA 2250/06, which is one of the appeals joined in these proceedings (see para. 1 above)). Ultimately, as aforesaid, the appeal was withdrawn after a settlement agreement was reached between the parties. Nevertheless, since the parties in the instant case did consider the said judgment, we have seen proper to explain our reservation as regards the way in which section 1(b)(1)(ii) of the Law was interpreted in Dakak. The said interpretation is not consistent with this Court's findings in Levy or the underlying assumption relied upon in Golan. This fact, per se, raises difficulty (as regards the departure of the trial courts from a binding precedent of the Supreme Court, see, for example, ALA 3749/12 Bar-Oz v. Setter, paras. 18-20 of my opinion (August 1, 2013)). In addition, in my opinion, the interpretation also raises difficulties with respect to the crux of the matter for the reasons detailed above. Moreover, there is substance to the Respondents' arguments that the said interpretation will in any event not exclude from the application of the Law the residents of Judea and Samaria who were Jordanian nationals or citizens or were there at any time since 1947 and have property in Israel. This is in view of the other alternatives of section 1(b)(1) of the Law. According to the Respondents, it appears that a considerable proportion of the residents of Judea and Samaria are involved. However, the interpretation that "extends" the "area of Israel" beyond that provided in the Law raises substantial difficulties. This is in view of the clear wording of the Law, which expressly provides in section 1(i) that the area in which the law of the State of Israel applies is involved, and for other substantial reasons. Moreover, a finding of this type raises complex issues in respect of the exact nature of the terms "area of Israel" and "effective control". Thus, for example, the question could arise as to whether a distinction should be made among the areas of Judea and Samaria that are termed "areas A, B and C", according to the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip that was made between the State of Israel and the PLO on September 28, 1995 (for a discussion in a different context on the question of whether a certain area is under the control of the IDF further to the division of the said territories, see, for example, HCJ 2717/96 Wafa v. Ministry Of Defense, IsrSC 50(2) 848 (1996)). This complex question gained no consideration by those in support of using the term "effective control" in the context under discussion. In any event, it appears that this is not the proper place to decide those questions. Moreover, one should be aware that such an interpretation might lead to the Law's application to property not included in it until now. This is because the Law applies to properties in "the area of Israel" (section 1(b)(1) of the Law.) Hence, finding that Judea and Samaria is part of "the area of Israel" might lead to properties located there also becoming "absentees' property".

 

27.       In view of all the foregoing, there is no alternative but to conclude that the Absentees' Property Law does apply to properties in East Jerusalem, the rights in which are owned by residents of Judea and Samaria. However, that is not the end of it. We must consider the way in which the Law is implemented in cases like these.

 

Exercise of the Powers under the Law in the Cases under Discussion

 

28.       The finding that the said properties are "absentees' property" is very problematic, not only at the level of international law but also as regards administrative law. The Respondents do not deny this either. It should be borne in mind that those involved are residents of Judea and Samaria who have become "absentees", not because of any act done by them but because of the transfer of control of East Jerusalem to Israel and the application of Israeli law there. In addition, persons are not involved who are under the control of another state, and they are in areas over which Israel has control – albeit only certain control. In this context, we should bear in mind that in the course of the Law's enactment it was explained that section 1(b)(1)(ii) of the Law meant "people who are in fact not in the area of the State of Israel" (as the Chairman of the Finance Committee, D.Z. Pinkas, MK, said in Minutes 119, p. 868). In this sense, there is indeed a certain similarity between the residents of Judea and Samaria and the residents of East Jerusalem, although an analogy should clearly not be drawn between the cases in view of the difference in the legal status of the two areas. It appears that there is indeed a difference between the case of residents of Judea and Samaria and the case of those for whom the Absentees' Property Law was intended (see also Cochrane, p. 330, where Justice H. Cohn mentioned a person who is "in part of Palestine outside the area of Israel" as one of the cases in which the Law applies to someone who has nothing whatsoever to do with absenteeism). Indeed, there are differences between the residents of Judea and Samaria, the citizens or nationals of the hostile states in section 1(b)(1)(i) of the Law, and a person who deliberately "left his ordinary place of residence in Palestine" in the circumstances described in subparagraph (iii). In fact, the absenteeism of the residents of Judea and Samaria in respect of their property in East Jerusalem derives from the broad wording of the Law and its continuing application, due to the prolonged state of emergency (see paras. 14 and 18 above). It is difficult to believe that this was the type of case intended by the Law, which was, as aforesaid, enacted against the background of specific and exceptional events. The results of applying the Absentees' Property Law in these cases is also particularly harsh having regard to the fact that the residents of Judea and Samaria are not entitled to compensation for their properties that are vested in the Custodian. This is because the right to claim compensation by virtue of the Compensation Law is granted only to residents of Israel (section 2 of the Compensation Law; see also Benvenisti and Zamir, Private Property, pp. 14, 28-29. It must be said that there is a certain similarity between denying a person's rights to his property because it has become absentees' property and the expropriation of land for public purposes (in which connection it should be noted that the view is expressed in the literature that laying down the ability to obtain compensation under the Compensation Law in the case of Israeli residents reinforces the argument that underlying the failure to release absentees' property is a rationale similar to that underlying the acquisition of land for public purposes (see, ibid., p. 14). See also Sandy Kedar, “Majority Time, Minority Time: Land, Nation and the Law of Adverse Possession in Israel,” 21 (3) Iyunei Mishpat  665, 727 (1998)). Nevertheless, while the grant of compensation is one of the major foundations of modern expropriation law (see, for example, CA 8622/07 Rotman v. Ma'atz - Israeli National Public Works Department Ltd, paras. 65-71 of the opinion of Justice U. Vogelman (May 14, 2012)), as regards absentees resident in Judea and Samaria, the legislature has supplied no statutory arrangement to obtain compensation for the property taken from them. This further underlines the difficulty involved in applying the Absentees' Property Law in respect of them. This problem has not been ignored by the various different attorneys general over the years either. Thus, inter alia, on January 31, 2005, the Attorney General, M. Mazuz, wrote to the Minister of Finance, B. Netanyahu, who was the person responsible for the implementation of the Law (hereinafter: "the Mazuz Directive") as follows:

 

            "The absenteeism of property in East Jerusalem of residents of Judea and Samaria is of a technical character since they became absentees because of a unilateral act taken by the State of Israel for a different purpose, when both the properties and their owners were under the control of the State of Israel, and where it would appear that the purposes of the Law are not being fulfilled here. Involved are, in fact, 'attendant absentees', whose rights in their property have been denied due to the broad technical wording of the Law. Moreover, as regards residents of Judea and Samaria whose property in East Jerusalem has become absentees' property, the result is particularly harsh because applying the Law means the denial of the property without any compensation, because the Absentees' Property (Compensation) Law, 5733-1973 grants compensation only to absentees who were residents of the State of Israel at the time of its enactment" (ibid., para. 2).

 

29.       In this context it should be noted that one should be conscious of the fact that the strict implementation of the Law in regard to the residents of Judea and Samaria is also likely to lead to the property in Israel of the residents of Judea and Samaria who are Israeli nationals being regarded as "absentees' property". Thus, for example, according to this interpretation, even a property in Tel Aviv whose owner is a resident of Ariel or Beit El is vested in the Custodian. As aforesaid, in this respect the Respondents argued that the Law can indeed be understood in this way but the Custodian does not apply its provisions in such cases, just as he does not apply them in other cases of persons who lawfully move outside Israel. Let us again emphasize matters because of the extreme result that emerges from the language of the Law: any property in Israel the owner of the rights in which is a resident of Judea and Samaria is absentees' property. Hence, for example, if a debt is owed to a person who resides in Judea and Samaria by a person who resides in Jerusalem as a result of a transaction currently made between them, prima facie the debt is vested in the Custodian. Perhaps it is not superfluous to mention that this is also apt in respect of real estate in Israel of the residents of Judea and Samaria. It should also be emphasized that the Absentees' Property Law takes no interest in the religious characteristics, for example, of the "absentee" and the courts have applied its provisions to Jewish "absentees" more than once (CA 4682/92, Estate of Salim Ezra Shaya, Deceased v. Beit Taltash Ltd, IsrSC 54(5) 252, 279 (per Justice J. Kedmi) (2000)).

 

30.       In view of the said difficulties, the State authorities, under the direction of the  attorneys general, have seen fit to limit the exercise of the Custodian's powers in such cases. The chain of events in this context is described in the MazuzDirective, which was filed in the cases before us. Back in November 1968, not long after the Six Day War, it was decided in a forum headed by the Minister of Justice, under the guidance of the then Attorney General M. Shamgar, that the Law should not be implemented in respect of immovable property of residents of Judea and Samaria in East Jerusalem. Attorney General Shamgar explained the decision in the following way:

 

            "… We have not seen any practical justification for seizing property that has become absentees' property at one and the same time because its owner – who is a resident of Judea and Samaria – has become a subject under the control of the Israeli government authorities. In other words, since the property would not have been absentees' property before the date on which the IDF forces entered East Jerusalem and would not have become absentees' property had East Jerusalem continued to be part of Judea and Samaria, we have not considered it justified for the annexation of East Jerusalem, and it alone, to lead to taking the property of a person, who is not actually an absentee, but from the time his property came into our hands is in territory under the control of the IDF forces". (The letter of August 18, 1969 from Attorney General M. Shamgar to the Israel Land Administration, as cited in the Mazuz Directive).

 

            Over the years, attempts have been made to erode the said directive. In 1977, a forum headed by the Minister of Justice and the Minister of Agriculture laid down a temporary arrangement "that would be reviewed in light of the experience of its implementation". According to this arrangement, the residents of Judea and Samaria would be required to apply of their own initiative to the Custodian to continue using their property in East Jerusalem. It later became apparent that the arrangement had not actually been reviewed and that "the Law was being abused" under cover of the arrangement (the Mazuz Directive, para. 4(b); for further discussion, see the Report of the Committee for the Examination of Buildings in East Jerusalem (1992) (hereinafter:  "the Klugman Report")). The 1992 Report also described faults that had occurred in the proceedings to declare properties in East Jerusalem "absentees' property" and it stated that "the functioning of the Custodian of Absentees' Property was very flawed, by any criterion" (ibid., p. 24; see also pp. 12-13, 26). In view of that, it was recommended to make an immediate, comprehensive examination into the functioning of the Custodian. In addition, the Attorney General appointed a team to determine procedures for the exercise of the Custodian's powers (the Klugman Rport, p. 25). Further thereto it was decided to freeze the operation of the Law again and reinstate the previous policy in accordance with the 1968 directive. In 1997, the limitations that had been instituted were again eased and the Custodian was permitted to issue certificates in respect of vacant properties, with the authority of the legal adviser to the Ministry of Finance. As regards occupied properties, the authority of the Ministry of Justice was also required. According to the Mazuz Directive, it appears that only limited use of that power was actually made. In March 2000, a ministerial forum, with the participation of the Minister of Finance, the Minister of Justice and the Minister for Jerusalem Affairs, determined that any transfer of property in East Jerusalem by the Custodian to the Development Authority required approval by the said forum or such person as appointed by it in such respect. In 2004, the Ministerial Committee on Jerusalem Affairs made a decision declaring that it sought to remove all the limitations on the exercise of the Custodian's power in respect of properties in East Jerusalem. It was explained in the decision that the Custodian was vested with powers pursuant to section 19 of the Law, including to transfer, sell or lease real estate in East Jerusalem to the Development Authority (Decision no. J'lem/11 of June 22, 2004; the decision was granted the force of a government decision on July 8, 2004 (Decision no. 2207)). It should be noted that the decision was made contrary to the opinion of the Ministry of Justice and did not include in it the original proposal that the exercise of the said power would necessitate consultation with the legal adviser to the Ministry of Finance or his representative.

 

            In response, at the beginning of 2005, Attorney General M. Mazuz made it clear that the said decision could not be upheld, that it was ultra vires and not within the power and authority of the Ministerial Committee on Jerusalem Affairs. He asked the Minister of Finance to order the immediate cessation of the Law's implementation in respect of the East Jerusalem properties of Judea and Samaria residents and he expressed his opinion that there was no alternative but to reinstate the previous policy, namely to determine that "in general, use will not be made of the powers under the Law in respect of the properties under consideration, except in special circumstances and subject to prior approval by the Attorney General or such person as authorized by him for the purpose" (the Mazuz Directive, para. 6). As we have been informed in these proceedings, that position has also been adopted by the current Attorney General, Y. Weinstein, and it is also the position of the Respondents in the appeals before us (the Respondents' notification of August 28, 2013).

 

31.       Hence, there is in fact no dispute between the parties to these proceedings that the strict implementation of the Law in respect of properties in East Jerusalem, the owners of the rights in which are residents of Judea and Samaria, raises significant difficulties. This has been the opinion of the attorneys general for many years, and the Respondents do not deny it. As aforesaid, the Respondents' position is that the Law does indeed apply to East Jerusalem properties of residents of Judea and Samaria, but it is generally not to be applied in such cases. This is except in special circumstances, after obtaining authority from the Attorney General. The distinction between the application of the Law and its implementation has also found expression in the case law of this Court. Thus, in the Levy case, Deputy President Ben Porat concurred in the ruling that the Absentees' Property Law does apply to properties in East Jerusalem of the residents of Judea and Samaria. However, she noted that although those properties can be regarded as "absentees' property", the question might arise as to whether the powers of the Custodian in accordance with the Law ought to be exercised in the circumstances. This is given the fact that persons are involved are under IDF control and but for the annexation of their land for the sake of united Jerusalem, they would not have been regarded as "absentees" (ibid., p. 390). This is also consistent with the approach in the Cochrane case. As aforesaid, in that case, despite the difficulties that Justice H. Cohn saw in the broad application of the Law deriving from its sweeping wording, he did not seek to find that the Law does not apply. Instead, he explained that the solution to the cases in which the problem arises is to be found in the power granted to the administrative authorities to exclude certain parties from the application of the Law or to release absentees' property (see sections 27-29 of the Law)).

 

32.       This approach is also essentially acceptable to us. As we have detailed, it cannot be held that the Law does not apply to properties in East Jerusalem whose owners are residents of Judea and Samaria. Nevertheless, the powers that are granted by the Law in those cases should be exercised scrupulously and with extreme. In my opinion, in view of the difficulties mentioned above, it is inappropriate to exercise those powers in respect of the said properties, except in the most exceptional of situations. In addition, even where it is decided to take action in accordance with the Law – and as aforesaid, those cases ought to be exceedingly rare – the same will necessitate obtaining prior authority from the Attorney General himself, together with a decision of the Government or its ministerial committee approving the same. We thereby in fact adopt the restrictions in respect of the policy of implementing the Law that the Respondents have long been assuming. This is with the supplemental requirement that any act in accordance with the Law in respect of those properties should also be reviewed and approved by the government or a ministerial committee. Let us explain that we have considered it appropriate to entrench in case law the policy that has long been adopted, according to the Respondents, in this respect and even to make it more stringent, since experience shows that the restraints prescribed have not always been observed and in view of the repeated attempts to erode them, as aforesaid. Moreover it should be borne in mind that any decision to implement the Law in a particular case is, in any event, subject to judicial review.

 

33.       We would also note that insofar as the competent authorities believe that there is a justified need to acquire ownership of property of the type under consideration, they have available to them means other than the Absentees' Property Law that enable them to do so. Thus, for example, the Acquisition Ordinance and various provisions of the Planning and Building Law, 5725-1965 (see, for example, chapter 8 of the said Law, which concerns expropriations). Hence, the restraints that have been prescribed above do not block the way of the authorities to acquire rights in the properties under consideration by virtue of other statutory arrangements, provided that there is justification therefor, and that the conditions prescribed by law are fulfilled. Clearly, statutory tools like those mentioned are preferable to implementing the Absentees' Property Law. In other words, the Absentees' Property Law should only be applied, if at all, after all the other options under the various different expropriation statutes have been exhausted. This is in view of the problems that the Law raises and the fact that the other arrangements that we have mentioned are generally more proportionate.

 

34.       Prima facie, a ruling similar to that reached by us could also have been reached by the course delineated in the Ganimat case, that is to say by adopting a new approach to the interpretation of the Absentees' Property Law along the lines of the Basic Laws, despite the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty. However, since the determinations with regard to the Absentees' Property Law and its interpretation do not depend upon the Basic Law, there is no need to consider a move based on section 10 as aforesaid (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel, IsrSC 50(2) 769, 781 (per Justice M. Cheshin) (1996)). As aforesaid, my decision does not relate to the constitutional aspect or the validity of the provisions of the Absentees' Property Law, but is at the administrative level concerning the way in which the powers by virtue thereof are exercised. Incidentally, it should to be noted that human rights existed before the Basic Laws, and those rights are, in my opinion, more than sufficient to lead to the conclusion that we have reached.

 

The Application of the Judgment in Time

 

35.       The final issue that is left for us to address is that of the of this judgment application in time. In our decision of September 11, 2013, we permitted the parties to supplement their briefs in regard to the application in time of a possible judicial finding that the Law does not apply in respect of residents of Judea and Samaria who have properties in East Jerusalem. Ultimately, our conclusion is, as aforesaid, that although the Law does apply to such properties, it is subject to very stringent restraints with regard to its exercise. Nevertheless, in view of the possible implications of our other finding that, in general, the powers under the Law should only be exercised in very exceptional cases, we think it proper to consider the application in time of this judgment (see HCJ 3514/07 Mivtahim Social Insurance Institute of the Workers Ltd v. Fiorst, para. 33 and the references there (per President (ret.) D. Beinisch) (May 13, 2012)). Although the parties' arguments related to the commencement date of a (possible) rule that the Law does not apply in the instant situations, they are still relevant to the rule laid down with regard to the way in which the Law is implemented. Consequently, we shall briefly cite the parties' main arguments on the application in time, insofar as they are relevant to the ruling that we have ultimately reached.

 

36.       The Respondents oppose the possibility that a case-law rule – if laid down – according to which the Law does not apply in respect of properties in East Jerusalem of the residents of Judea and Samaria would apply retrospectively. In their view, the practice of interpretation applied by them for many years, in accordance with the case law, should be respected. By that practice, the Custodian has been vested with many properties and he has transferred some of them to third parties over the years. According to them, at the present time it is difficult to produce accurate data on the number of properties, out of all the properties that have been transferred to the Custodian, which belong to the said category. In addition, they emphasize that various parties have relied on the said interpretation, and the Respondents also insist on the need for certainty and stability where rights in land are involved. They warn that adopting such an interpretation with retrospective application would lead to extensive litigation and might also have implications at the political level. The Appellants, for their part, reject the Respondents' position. They argue that there is nothing to stop applying a new interpretation to a statute that substantially harms a particular population merely on the ground that it was customary for many years. In addition, according to them, the position of the State authorities in this respect has not been consistent and uniform throughout the years, and at certain times it has departed from the "customary practice" asserted by the Respondents. In their view, following the judgment in the Dakak case, the practice changed and it cannot be said that a "customary regime that is clear to everyone" is involved. Moreover, the Appellants assert that the Respondents did not substantiate the plea that the rule should not be applied retrospectively, or supply any factual data in support of the argument that changing the rule of law "backwards" will infringe the interest of reliance. Furthermore, in the Appellants' opinion, under the circumstances, the interest of changing the law supersedes the interest of reliance. In this regard, they state that the amount of land involved is fixed and is not going to change, and that third parties who, by the actions of the Custodian, have enjoyed property rights that are not theirs should be deemed as unjustly enricheds.

 

37.       Having considered all the factors in this respect, we have reached the overall conclusion that the holdings of this judgment should only be applied prospectively (for a discussion on delaying the avoidance of an administrative decision and relative avoidance, see CFH 7398/09 Jerusalem Municipality v. Clalit Health Services, paras. 29 and 51 (April 14, 2015)). This is in the following sense: if by the time of the handing down of this our judgment, the competent authorities have not done any act in accordance with the Law in respect of a property in East Jerusalem whose owner is a resident of Judea and Samaria, then henceforth the powers by virtue of the Law should not be exercised, except in extraordinary cases and even then after exhausting other options, for example under the Acquisition Ordinance. If it is indeed decided to take action in accordance with the Absentees' Property Law, the same will necessitate obtaining prior authority from the Attorney General himself and also from theGovernment or its ministerial committee. As already mentioned, absentees' property is automatically vested in the Custodian from the moment that it fulfils the definition of "absentees' property", and the same does not necessitate the taking of any action by the Custodian. Consequently, the question of what is "an act in accordance with the Law" as aforesaid might arise. I mean the exercise of any power under the Law that is subject to judicial review, which has been performed by the competent authorities in, or in respect of a property, provided that there is written documentation thereof. It should be emphasized that "the requirement of writing" is a precondition for finding that a particular property is exempt from the application of the determinations in this judgment. The acts, the commission of which will lead to the conclusion that the property is subject to the previous law, will, for example, include steps to care for, maintain, repair or develop the held property, as mentioned in section 7 of the Law; moves that have been taken in the management of a business or partnership instead of the absentee (sections 8, 24, 25 of the Law); transferring the rights in the property to another, including to the Development Authority; discharging debts or performing obligations relating to absentees' property (as provided in section 20 of the Law); the Custodian's presenting written requirements in respect of the property to its owner (for example as provided in section 21(e) of the Law or section 23(c) of the Law; the issue of orders (for example of the type mentioned in section 11 of the Law); the giving of certificates (such as certificates under sections 10 and 30 of the Law); and incurring expenses and conducting legal proceedings in respect of the property. Moreover, the new rule will of course not apply to properties that constitute "held property", namely property that the Custodian actually holds, including property acquired in exchange for vested property (see section 1(g) of the Law). It should be emphasized that these are mere examples of acts in respect of properties as regards which further to their commission this judgment will not apply, and it is not an exhaustive list.

 

38.       The foregoing new requirements that are to be met henceforth will not apply where, prior to the award of the judgment, powers have already been exercised in accordance with the Absentees' Property Law in respect of particular property. In such cases, the law that applied prior to this judgment will apply. In such connection, the authorities will of course be bound by the restrictive policy that the Attorney General laid down with regard to the implementation of the Law in those cases. This means that where an act as described above has already been done in respect of a property of the type with which we are concerned, the mere fact that the new rules that we have laid down have not been performed will not be regarded as a defect, and certainly not a defect that would to lead to the avoidance of the decisions or acts that have been made or done in respect of the property. This finding is intended to contend with the concern that has been raised with regard to retroactive changes of the rules that applied to the land policy in East Jerusalem and to avoid "reopening" transactions made in respect of those properties, with the difficulties involved therein both materially and evidentially. In this context, we have taken into account the possibility that in a substantial proportion of cases, transactions that have long been completed and even "chains" of transactions will be involved. A different ruling might have led to ownership chaos, the flooding of the courts with lawsuits, the impairment of legal certainty and the infringement of a very large public's reliance interest. It should be noted that this approach is also consistent with the spirit of section 17 (a) of the Law, which provides that transactions that have been made by the Custodian in good faith in respect of property that was mistakenly regarded as vested property shall not be invalidated (for a discussion of this section, see, for example, Makura Farm, pp. 17-25; CA 1501/99 Derini v. Ministry of Finance, para. 4 (December 20, 2004); CA 5685/94 Amutat ELAD El Ir David v. Estate of Ahmed Hussein Moussa Alabsi, Deceased, IsrSC 53(4) 730 (1999), in which it was held that the Custodian had acted in an absence of good faith in respect of realty in East Jerusalem that he sold to the Development Authority, and the transaction was therefore invalid).

 

39.       In any event, the cases concerning absentees' property, in respect of which action has already been taken as aforesaid by the Custodian, should be resolved by means of "the release course" prescribed in sections 28 and 29 of the Law. The problems of implementing the Law in respect of properties of the type under consideration should also be borne in mind by the competent entity when deciding on the release of properties (see also Golan, p. 646). In other words, where it is sought to release one of the said properties to which this judgment does not apply, the Special Committee and the Custodian ought to give substantial weight to the difficulties involved in viewing them as "absentees' property", and also to the restrictive policy that is to be adopted, in accordance with which the Law is to be implemented in respect of them. Consequently, preference should be given to the release of property in specie. To complete the picture, we would mention that we have been informed by the Respondents in the hearings in these proceedings that rules have been laid down for the exercise of the Special Committee's discretion in accordance with section 29 of the Law with regard to the release of absentees' property in East Jerusalem of Judea and Samaria residents. According to them, the rules have been formulated along the lines of the Attorney General's position described above. The Respondents believe that a fitting solution will thereby be given in the majority of the cases under consideration, leaving room for the necessary flexibility in sensitive deliberations of this type. We have not considered it appropriate to relate to the actual rules that have been established, as they are not the focus of these proceedings, and bearing in mind that the power to address those matters is vested in the High Court of Justice (see Lulu, para. 8). Insofar as there are objections to the rules that have been laid down, they should be heard in the appropriate proceedings, rather than in the instant ones.

 

The Cases before Us

 

40.       Against the background of these general statements, we shall now rule on the cases before us. Implementing the findings mentioned above in the concrete cases before us leads to the conclusion that the properties under consideration do indeed constitute absentees' property. Properties are involved that are situated in the area of Israel, within the meaning of the Law, whose owners are residents of Judea and Samaria. Hence, the alternative of section 1(b)(1)(ii) of the law is fulfilled in respect of them. Consequently, the Appellants' pleas in both appeals aimed against the finding that Property 1 and Property 2 are absentees' property are dismissed.

 

            The Appellants' alternative application in CA 5931/06 is for us to order the release of Property 1 in accordance with section 28 of the Law. As a condition for exercising the power to release property, a recommendation of the Special Committee under section 29 of the Law is necessary (see also Golan, p. 641). As aforesaid, incidental to these proceedings, the Committee deliberated about the release of Property 1. According to the Respondents, the land involved in the dispute was sold to third parties on "market overt conditions" and the Custodian now only holds the proceeds of sale. The Special Committee recommended releasing the proceeds received for the property only to those of the Appellants who are residents of Judea and Samaria and still alive, and supplemental particulars in respect of the Appellants who have died were requested. As already mentioned, the way in which the Committee's powers have been exercised is subject to review by the High Court of Justice rather than this Court sitting as a court of civil appeals (Lulu, para. 8). Hence, insofar as the Appellants in CA 5931/06 have complaints with regard to the Special Committee's decision, the instant proceedings are not the appropriate forum. In any event, and without making any ruling, we would comment that, under the circumstances, it appears that ruling on the rights in Property 1 necessitates factual enquiry and the consideration of legal questions that were not decided in the judgment of the District Court or argued before us. That being the case, the application to order the release of the property involved in CA 5931/06 is dismissed.

 

            The Appellants in CA 2038/09 have applied for us to order the avoidance of Property 2's seizure and its restitution to them, inter alia in view of their arguments in respect of the Respondents' conduct in the case. As aforesaid, from the moment that a property fulfils the conditions for being "absentees' property", the rights in it are vested in the Custodian, including the power to seize the property. Having determined that "absentees' property" is involved it can only be returned to its original owners in the ways delineated in the Law, with the emphasis on the possibility of release under sections 28-29 of the Law. We would mention that the Special Committee also deliberated upon the release of Property 2. The Committee recommended the release of the parts of the property that had not been seized for the construction of the security fence, and to transfer the consideration for the part seized to the Appellants, who are residents of Judea and Samaria and, according to it, those who held it continuously until its seizure. In accordance with the foregoing, insofar as the Appellants in CA 2038/09 have complaints in such respect or with regard to the seizure of the property for the construction of the fence, the the instant proceedings are not the appropriate forum. Such being the case, the Appellants' application in CA 2038/09 that we order the avoidance of the seizure of the property involved in the appeal and its restoral to them is dismissed.

 

Conclusion

 

41.       Accordingly, my opinion is that there is no alternative but to conclude that the Absentees' Property Law applies to properties in East Jerusalem owned by residents of Judea and Samaria who enjoy or hold them. This is despite the considerable problem raised by treating them as "absentees' property". In this context, we should be conscious of the fact that the strict implementation of the Law's provisions to residents of Judea and Samaria is also likely to lead to serious results as regards residents of Judea and Samaria who are Israeli nationals, whose property in Israel is prima facie regarded as "absentees' property". Alongside this, the substantial difficulties are of significance in the context of exercising the powers under the Law in respect of such property. Consequently, I would suggest to my colleagues to find that the competent authorities must, in general, refrain from exercising the powers by virtue of the Law in respect of the properties under consideration. As such, I have not considered it appropriate to seal the fate of such property and prevent any possibility of implementing the Law in regard to that property. Our assumption is that there may be cases, albeit exceedingly rare, in which it might be justified to take such steps in respect of properties in East Jerusalem of the residents of Judea and Samaria. In those cases, the performance of any act in accordance with the Law will necessitate obtaining prior approval from the Attorney General himself and a decision of the Government or its ministerial committee. This amounts to the adoption of the restrictive policy assumed by the Respondents over the years, with a certain stringency in the form of adding the requirement for the Government's approval. This judgment, and in particular the finding with regard to the restrictions obliged when exercising the powers by virtue of the Law in respect of such property, will only apply prospectively, in the following sense:

 

            (a)       If by the time of the handing down of this judgment, the competent authorities have not done any act by virtue of the Absentees' Property Law in respect of a particular property in East Jerusalem owned by a resident of Judea and Samaria, the findings prescribed in this judgment will apply. Accordingly, the authorities will not be able to take steps in accordance with the Law in respect of the property without the prior authority of the Attorney General and without the approval of the Government or its ministerial committee. In mentioning an "act by virtue of the Law" we mean any act that is subject to judicial review and an act in accordance with the Law, like in the non-exhaustive list of acts contained in para. 37 above, provided always that there is written documentation.

 

            (b)       These requirements will not apply in cases where, prior to this judgment, acts in accordance with the Law were done by the competent authorities in respect of property in East Jerusalem owned by a resident of Judea and Samaria. In those cases, the previous law will apply, including the restrictive rules that have been laid down by the Attorney General in respect of the exercise of the said powers. This means that non-performance of the new conditions that we have just prescribed will not, per se, be regarded as a defect in the administrative act, and will not be such as, per se, to lead to the avoidance of the steps taken in respect of the property or to the "reopening" of transactions already made in respect of it. In such cases, the way is open to release the absentees' property along the course prescribed in sections 28-29 of the Law. When the competent authorities come to decide on the release of such properties, they must take into account the great problem involved in those properties being "absentees' property".

 

42.       In the cases before us, I would suggest to my colleagues that we dismiss the appeals. Under the circumstances, there shall be no order for costs.

 

Justice S. Joubran

 

1.         I agree with the thorough and comprehensive opinion of my colleague, President (ret.) A. Grunis, but would like to add a few words on the application of the Basic Laws as a tool in the interpretation of old legislation. In my opinion, a ruling similar to that of my colleague the President (ret.) could have been reached by an interpretation of old legislation "in the spirit of the Basic Laws", as I shall explain below, and as my colleague Deputy President E. Rubinstein has detailed in his opinion in these proceedings.

 

2.         In my view, the Basic Laws give the judge an appropriate tool of interpretation when questions of interpretation in respect of the provisions of law arise. The Validity of Laws provision in section 10 of Basic Law: Human Dignity and Liberty provides that "this Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law". That is to say that so long as there was existing law prior to the commencement of the Basic Laws, its validity is preserved. However, in my opinion, it is not to be inferred from that provision that the Basic Laws are not to be used as a tool for the interpretation of existing law when that law is not clear and its validity is in any event dubious. The Basic Laws have given our legal system an arrangement of fundamental principles, which I believe can, and frequently should, be referred to when we are reviewing the proper interpretation or legal policy.

 

3.         Using the Basic Laws as an interpretive tool can, in my opinion, give substance to the principles and rights that are under consideration in existing legislation, and properly analyze the balance between them. I believe that such will not impair the validity of the existing law but will conceptualize their substance in a more balanced and organized discourse (cf. CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589, paras. 7-12 of the opinion of Justice M. Cheshin (1995) (hereinafter: Ganimat)). So too, for example, Basic Law: Freedom of Occupation distinguishes between the validity of provisions of legislation and the interpretation of the provisions that "will be made in the spirit of the provisions of this Basic Law" (section 10 of Basic Law: Freedom of Occupation). According to Justice (as he then was) A. Barak, this is obliged as an interpretive conclusion in the context of Basic Law: Human Dignity and Liberty even without an express provision (and see: Ganimat, para. 6 of the opinion of Justice A. Barak). In this respect, his statement there is apt:

 

            "The constitutional status of the Basic Law radiates to all parts of Israeli law. This radiation does not pass over the old law. It, too, is part of the State of Israel's law. It, too, is part of its fabric. The constitutional radiation that stems from the Basic Law affects all parts of Israeli law. It necessarily influences old law as well. In truth, the validity of the old law is preserved. The radiation of the Basic Law upon it is therefore not as strong as it is upon new law. The latter might be avoided if it is contrary to the provisions of the Basic Law. The old law is protected against avoidance. It has a constitutional canopy that protects it. However the old law is not protected against a new interpretative perspective with regard to its meaning. Indeed, with the enactment of the Basic Laws on human rights there has been a material change in the field of Israeli law. Every legal sapling in that field is influenced by that change. Only in that way will harmony and uniformity be achieved in Israeli law. The law is a set of interrelated tools. Changing one of those tools affects them all. It is impossible to distinguish between old and new law as regards the interpretative influences of the Basic Law. Indeed, all administrative discretion that is granted in accordance with the old law should be exercised along the lines of the Basic Laws; all judicial discretion that is granted in accordance with the old law should be exercised in the spirit of the Basic Laws; and in this context, every statutory norm should be interpreted with the inspiration of the Basic Law" (Ganimat, para. 7 of the opinion of Justice A. Barak).

 

            My view is similar to that of Justice A. Barak and I believe, as aforesaid, that in the event that a question of interpretation arises in respect of the provisions of the law, recourse should be made to the Basic Laws, and inspiration drawn from them. In his opinion, my colleague the President (ret.) did not consider the said interpretative approach (and see para. 34 of his opinion, above) but since in the instant case we still reach a similar ruling by his method, I shall add my voice to his opinion.

 

4.         Together with all the foregoing, I concur with the opinion of my colleague President (ret.) A. Grunis.

 

Justice Y. Danziger

 

            I concur in the opinion of my colleague President (ret.) A. Grunis, who proposes to dismiss the appeals before us without any order for costs.

 

            Like my colleague, I too believe that, as a rule, the competent authorities should avoid exercising the powers by virtue of the Absentees' Property Law, 5710-1950 in respect of properties in East Jerusalem whose owners are residents of Judea and Samaria and hold or enjoy them.

 

            As regards those exceptional cases – "exceedingly rare" as my colleague defines them – when there might be justification for exercising the power, I concur with the solution proposed by my colleague, according to which the exercise of the power should be conditional upon obtaining prior approval from the Attorney General, accompanied by an approbative decision of the Government or its ministerial committee.

 

            I therefore concur in the opinion of my colleague, including his findings with regard to the prospective application of the restraints therein, as set out in paras. 41(a) and (b) of his opinion.

 

President M. Naor

 

1.         I concur in the judgment of my colleague President (ret.) A. Grunis. In my opinion, it is very doubtful whether there can, in fact, be an "exceedingly rare" case, in the words of my colleague, where it will be justified to implement the Law in respect of properties in East Jerusalem of the residents of Judea and Samaria.

 

2.         I would explain that in my view, even someone whose case has already been considered in the past by the Special Committee is entitled to apply to it again further to the fundamental observations in this judgment. As my colleague has noted, its decision is subject to review by the High Court of Justice.

 

Deputy President E. Rubinstein

 

A.        I accept the result reached by my colleague President (ret.) A. Grunis in his comprehensive opinion. This is a complex issue which involves the intricacies of the political situation in our region for which a solution has unfortunately not yet been found, and it touches on other issues involved in the dispute with our neighbors, including the refugee question, which is one of the most difficult issues, and the definition of "absentees' property" has a certain relevance thereto. As evidence of this is the fact that, over the years, various different parties have considered the matter, including attorneys general, as my colleague described, and they have sought a modus operandi that will be as fair as possible to all those concerned. That is to say that they will not go into the delicate political issues that go beyond the legal action but will be cautious and moderate in the operative implementation of legal absenteeism; and as my colleague now proposes, the same should only be with the approval of the Attorney General and the Government or a ministerial committee. That is to say that it will be considered very carefully.

 

B.        An example of the complexity and intricacy involved in the matter of absenteeism, which generally awaits the end of the dispute, is the need that arose when the peace agreement with Jordan was made in 1994 (and I would duly disclose that I headed the Israeli delegation in the negotiations on the peace agreement with Jordan) to enact the Implementation of the Peace Agreement Between the State of Israel and the Hashemite Kingdom Law, 5755-1995. The Law dealt with various matters, but section 6 prescribed as follows:

 

            "(a)     Notwithstanding as provided in the Absentees' Property Law, 5710-1950, with effect from Kislev 7, 5755 (November 19, 1994) property shall not be considered absentees' property merely because of the fact that the owner of the right thereto was a citizen or national of Jordan or was in Jordan after the said date.

 

            (b)       The provision of subsection (a) shall not alter the status of property that became absentees' property in accordance with the said Law prior to the date specified in subsection (a)"

 

            (See CA 4630/02 Custodian of Absentees' Property v. Abu Hatum (2007), para. K, which my colleague also cited.)

 

            Note that in section 6(b), as quoted above, it was provided that "the watershed" for the changes was the date of the peace agreement and no change was made to what preceded it; and in the explanatory notes on section 6 (Draft Laws 5755, 253), it was stated that "the status of properties that were absentees' property before the peace agreement will not alter". Section 6 therefore resolved difficulties that might have arisen in accordance with the legal position existing after making the peace agreement but not in respect of the past – "what was, will be" until times change. So too, mutatis mutandis, in the instant case, cautiously and moderately.

 

C.        I would also concur in principle with the observation of my colleague Justice S. Joubran with regard to the use of the Basic Laws on rights as a tool for the interpretation of the legislation to which the Validity of Laws provision in Basic Law: Human Dignity and Liberty (section 10 of the Basic Law) applies. It provides that "this Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law". Basic Law: Human Dignity and Liberty has been with us for more than two decades. During that period, this Court has time and again repeated the rule laid down in Ganimat to which my colleagues have referred, to the effect that "the constitutional radiation that stems from the Basic Law affects all parts of Israeli law. It necessarily influences old law as well" (para. 7 of the opinion of Justice (as he then was) A. Barak; see also A. Barak, “Basic Laws and Fundamental Values – the Constitutionalisation of the Legal System Further to the Basic Laws and its Effects on Criminal Law,” in Selected Writings I 455, 468-469 (5760) (Hebrew)).

 

D.        Further thereto, this principle has been applied in the interpretation of ordinances, statutes and regulations that predate the Basic Law. Thus, for example, it has been held that the Contempt of Court Ordinance (1929) and the Religious Courts (Enforcement of Obedience) Law, 5716-1956 should be interpreted "in light of the provisions of the Basic Law", MCA 4072/12 Anonymous v. Great Rabbinical Court, para. 24 of the opinion of Justice Zylbertal (2013); so too the Crime Register and Rehabilitation of Offenders Law, 5741-1981 (CFH 9384/01 Nasasreh v. Israel Bar, IsrSC 59(4) 637, 670 (2004); The Execution Law, 5727-1967 (CA 9136/02 Mr. Money Israel Ltd v. Reyes, IsrSC 58(3) 934, 953 (2004); The Protection of Privacy Law, 5741-1981 (HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior, IsrSC 58(4) 842, 848 (2004); the Defence (Emergency) Regulations 1945 (HCJ 8091/14 Center for the Defence of the Individual v. Minister of Defense, paras. 18 and 27 (2014); and so on and so forth. This is ethically anchored in what, in a different context, I happened to call "the spirit of the age" (AA 5939/04 Anonymous v. Anonymous, IsrSC 59(1) 665 (2004)), that is to say, giving case-law expression to the social developments in various spheres.

            It should be emphasized that this has also been laid down concretely with regard to the right of property, which stands at the center of the instant case. In fact, even before the well-known finding of Justice Barak in Ganimat, and even prior to the "constitutional revolution" in CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper..., Justice – as he then was – S. Levin held as follows: "With the enactment of Basic Law: Human Dignity and Liberty the normative weight of the right of property has risen to the position of a fundamental right. The provision in section 3 of the said Law that 'there shall be no infringement of a person's property' also carries weight when we come to interpret existing provisions of law…" (ALA 5222/93 Block 1992 Building Ltd v. Parcel 168 in Block 6181 Company Ltd, para. 5 (1994); and see also A. Barak, Legal Interpretation, volume III – Constitutional Interpretation, 560-563 (5754) (Hebrew); S. Levin, The Law of Civil Procedure (Introduction and Fundamentals), 33-35 (second edition, 5768-2008) (Hebrew)).

 

E.         And now to the case before us. There can be no question that the language of the Absentees' Property Law, 5710-1950 is not consistent with the right of property in section 3 of Basic Law: Human Dignity and Liberty. That infringement is, in the instant case, compounded by section 2 of the Absentees' Property (Compensation) Law, 5733-1973, which, as the President (ret.) stated, does not permit residents of the territory of Judea and Samaria to claim compensation for the properties that have been transferred to the Custodian of Absentees' Property. Indeed, under the provision of section 10 of the Basic Law we do not set upon a review of the constitutionality of the infringement: whether it is consistent with the values of the State of Israel, whether it is for a proper purpose and whether it is proportional (section 8 of the Law); and my colleague discussed at length the purpose of the Law and its answer to a complex problem that has not yet been resolved, but it can be said that what is called the "right of return" argument, with all its extensive derivatives, cannot be resolved by judicial interpretation. At the Camp David Summit in 2000, I was a member of the Israeli delegation and chaired the subcommittee that dealt with the subject of the refugees, and there was no doubt in Israel's position (which was also supported by the USA) that denied the very basis of that right as being "national suicide". Indeed, based on the case law that the Court has restated numerous times as aforesaid, the provisions of the relevant statute are to be interpreted in accordance with Basic Law: Human Dignity and Liberty. In the instant case, it appears that my colleague the President, despite not expressing an opinion on interpretation along the lines of the Basic Law in accordance with that stated in Ganimat, did in fact draw, what in my opinion is, a proper balance in accordance with the Basic Law when he determined the application of the Absentees' Property Law to the properties involved herein, and that in the instant circumstances, limited use should be made of the Absentees' Property Law, subject to various authorizations and approvals, and after the options included in other statutes have been exhausted (para. 33 of the President's opinion). I have considered it proper to add the foregoing in order to emphasize the importance of the determination in Ganimat and the scope of its application.

 

F.         Given the foregoing, I therefore concur in the opinion of my colleague President (ret.) A. Grunis, which balances between not upsetting a complex legal position, on the one hand, and great caution on the other, by means of a dual safety belt in operative decisions concerning the implementation of the Law in individual circumstances.

 

Justice H. Melcer

 

1.         I concur in the opinion of my colleague President (ret.) A. Grunis and with the remarks of my colleagues. Nevertheless, I am allowing myself to add a few comments of my own.

 

2.         My colleague President (ret.) A. Grunis writes in para. 20 of his opinion, inter alia, as follows:

 

            "In my opinion, it is certainly possible that at least some of the arrangements in the Law (the Absentees' Property (Compensation) Law, 5733-1973 – my clarification – H. Melcer), were they enacted today, would not meet the constitutional criteria. Nevertheless, in the instant case, the provisions of the limiting paragraph are not such as to help or to alter the conclusion with regard to the application of the Law in the cases under consideration here. This is in view of the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty, according to which the Basic Law does not affect the validity of any law that existed prior to its entry into force. This provision does not make it possible to find that any provision of the Law is void ".

 

            In para. 34 of his opinion President (ret.) A. Grunis goes on to say, in respect of the conclusions reached by him:

 

            “Prima facie, a ruling similar to that reached by us could also have been reached by the course delineated in the Ganimat case, that is to say by adopting a new approach to the interpretation of the Absentees' Property Law along the lines of the Basic Laws, despite the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty. However, since the determinations with regard to the Absentees' Property Law and its interpretation do not depend upon the Basic Law, there is no need to consider a move based on section 10 as aforesaid (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel, IsrSC 50(2) 769, 781 (per Justice M. Cheshin) (1996)). As aforesaid, my decision does not relate to the constitutional aspect or the validity of the provisions of the Absentees' Property Law, but is at the administrative level concerning the way in which the powers by virtue thereof are exercised. Incidentally, it should to be noted that human rights existed before the Basic Laws, and those rights are, in my opinion, more than sufficient to lead to the conclusion that we have reached.”

 

 

            Although it was not necessary in all the circumstances herein specifically to consider a move based on section 10 of Basic Law: Human Dignity and Liberty, the same was possible, and it also supports the result and is even proper, as was stated by my colleagues: Deputy President E. Rubinstein, Justice S. Joubran and Justice E. Hayut.

 

            Prof. Aharon Barak recently developed an approach of this type in the interpretation given by him to section 10 of the said Basic Law in his paper, Validity of Laws (an article that is due to be published in the Beinisch Volume – hereinafter referred to as "Validity of Laws"). Further to Prof. Barak's said article, I too stated in my opinion in FH 5698/11 State of Israel v. Mustfafa Dirani (January 15, 2015), as follows:

 

            "Even if the 'Validity of Laws' section contained in Basic Law: Human Dignity and Liberty did apply here, in my opinion that does not mean that the law that has been assimilated as aforesaid, has been "frozen" and it can certainly be altered (according to its normative source and the power to do so) by interpretation or 'adaptation' to the normative environment that has been created further to the values of the Basic Laws, or due to changing times in the world (especially in a case such as this, which involves the war on terror), because 'validity is one thing and meaning is another', see HCJ 6893/05 MK Levy v. Government of Israel, IsrSC 59(2) 876, 885 (2005). In such a case, the "adaptation" or "alteration" should have regard to the 'respect provision' contained in section 11 of Basic Law: Human Dignity and Liberty, and the 'limiting paragraph' of the said Basic Law. See Aharon Barak Human Dignity, The Constitutional Right and Its 'Daughter' Rights, volume I, 392-396 (5774-2014) (Hebrew); Barak, Validity of Laws, the text at footnote 23, and also page 24 ibid. Along these lines, one should also read the development, made by my colleague the President, of the rule that the lawsuit of an enemy national should not be tried by 'adapting it' to the present day and the necessary war on terror, in accordance with the requirements of section 8 of Basic Law: Human Dignity and Liberty" (ibid., para. 16).

 

3.         The practical difference between the foregoing two courses is of importance with regard to the future (in respect of the present, both ways lead to the same result, as aforesaid).

 

            The constitutional course, just like the international-law course, might perhaps in future – if peace settlements are reached with our neighbors – open a way to special arrangements at various different levels on a reciprocal basis, including mutual compensation, as part of a broader package, in view of "the regulatory takings" (to use the American terminology), and the taking of Jewish property in similar circumstances in Arab countries. A somewhat similar process was given expression in legislation further to the making of the peace agreement with Jordan in 1994, of which my colleague the Deputy President, Justice E Rubinstein was one of the architects (see the Implementation of the Peace Agreement Between the State of Israel and the Hashemite Kingdom Law, 5755-1995), and also in some of the countries of Eastern Europe after the changes of regime that occurred there.

 

            Section 12 of the Prescription Law, 5718-1958 (hereinafter: "the Prescription Law”) may be relevant in this respect in the appropriate conditions and with reciprocity. It provides as follows:

 

"In calculating the period of prescription, any time during which the plaintiff was the guardian or ward of the defendant shall not be taken into account".

 

            Also relevant are other provisions of the Prescription Law – section 14 of the statute (which specifically mentions property vested in the Custodian of Absentees' Property in the definition of "party"), and also section 16 of the same law which talks of extending the prescription period after the interruption has ended – in the instant case, according to sections 12 and 14 of the Prescription Law. (For an interpretation of the said sections, see Tal Havkin, Prescription, 213-216, 221-227, 239-240 (2014)(Hebrew)).

 

4.         In conclusion, I would say that the future and the hope that it embodies for peace settlements at this stage raise nothing more than expectations, while the present unfortunately dictates, at most, the legal result that my colleague President (ret.) A. Grunis has presented, in which we have all concurred.

 

Justice E. Hayut

 

1.         I concur in the judgment of my colleague President (ret.) A. Grunis and also the comment by my colleague Deputy President M. Naor, who casts great doubt with regard to the very existence of an "exceedingly rare" case that would justify the implementation of the Absentees' Property Law, 5710-1950, in respect of properties in East Jerusalem that belong to residents of Judea and Samaria. I also share her approach that persons whose case has been considered by the Special Committee in the past should be permitted to apply to it again to review their case in accordance with the principles that have been delineated in this judgment.

 

2.         The examples presented by my colleague President (ret.) A. Grunis in para. 18 of his opinion well illustrate the great difficulty raised by the Law because of its broad scope, alongside the great problems that arise at the international and administrative law levels with regard to its application in cases like those before us (see para. 28 of my colleague President (ret.) A. Grunis's opinion). These difficulties have led us to choose the course of "a rule that is not to be taught"[2] or, to be more precise, "a statute that is not to be taught". This course is perhaps an inevitable necessity given the rigid statutory position that currently exists (cf. Attorney General Directive No. 50.049 of January 1, 1972 with regard to the filing of indictments for an offence of homosexuality in accordance with section 152 of the Criminal Code Ordinance, 1936. Also compare Crim.App. 4865/09 Adv. Avigdor Feldman v. Tel Aviv District Court, paras. 7-8 (July 9, 2009)), but it is important to emphasize that it, too, raises considerable problems because in countries such as ours where the rule of law applies, the provisions of law and the values that the State seeks to apply and enforce are expected to be compatible.

 

3.         Finally, I would concur with the comments of my colleagues Justice S. Joubran, Justice E. Rubinstein and Justice H. Melcer as regards the principles of interpretation to be applied in respect of the legislation that preceded the Basic Laws to which the Validity of Laws provision applies (see, for example, section 10 of Basic Law: Human Dignity and Liberty). These principles of interpretation were considered by this Court in CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589 (1995), since when it has applied them again in its rulings more than once. In the instant case, my colleague President (ret.) A. Grunis, has, in his own way, reached a result that is consistent with these principles of interpretation, and I have therefore seen no need to expand on the matter.

 

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

 

            Given this 26th day of Nissan 5775 (April 15, 2015)

 

 

 

 

 

The President (ret.)

The President

The Deputy President

 

 

 

 

 

Justice

Justice

Justice

Justice

 

 

           

 

 

           

 

                                                                                                                       

 

[1]       Translator’s note: The  Hebrew version of the Absentees' Property Law uses the term "Eretz Israel" (the Land of Israel) which refers, at least in this context, to the territory that became the State of Israel, the West Bank and the Gaza Strip after the 1948 War of Independence. The authorized translation of the Law, prepared at the Ministry of Justice, upon which this translation is based, translates the terms "Eretz Israel" as "Palestine" and "Eretz Israeli" as "Palestinian".

[2] Translators note: A talmudic concept, see, e.g: Babylonian Talmud, Tractate Shabbat 12b; Tractate Eiruvin 7a; Tractate Bava Kama 30b.

Full opinion: 

A v. State of Israel

Case/docket number: 
CrimA 6659/06
Date Decided: 
Wednesday, June 11, 2008
Decision Type: 
Appellate
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

Appeals challenging the decisions of the District Court who upheld the legality of the appellants’ arrests under the Internment of Unlawful Combatants Law 5762-2002 (hereinafter: the Act.) We are concerned with the private case of the appellants, residents of the Gaza Strip, who in 2002-2003 were arrested in an administrative arrest under the security legislation that applies in the strip, when as a result of the end of the military rule there in September 2005, the Chief of the General Staff issued the appellants’ arrest warrants under the Act. The Appeals raise general issues as to the interpretation of the Act and its compliance with humanitarian international law and as to the legality of its arrangements.

 

The Supreme Court (in a decision by President Beinisch and joined by Justices Procaccia and Levi) rejected the appeals and held that:

 

The Act authorizes State authorities to arrest “Unlawful Combatants” – whoever take part in warfare or are part of a force executing warfare activity against the State of Israel, and who do not meet the conditions to be given the status of war prisoners. The objective of the Act is to prevent such persons’ return to combating Israel; it does not apply to innocent civilians and it must be interpreted, as much as possible, according to international law. The Act’s arrest provisions must be examined with the attempt to realize the provisions of Basic Law: Human Dignity and Liberty as much as possible. The Act’s arrest authorities severely and extensively infringe an arrested person’s personal liberty, which is justified under the appropriate circumstances to protect the State’s security. However, in light of the extent of the infringement and the extremity of the arrest tool, the infringement upon liberty rights must be interpreted as narrowly as possible, so that it is proportional to achieving only the security purposes. The Act must be interpreted in a manner that complies as much as possible with the international law norms to which Israel is obligated, but according to the changing reality as result of terror.

 

The Act includes a mechanism of administrative arrest that is carried out under a warrant by the Chief of General Staff. Administrative arrest is contingent upon the existence of a cause for arrest that is a result of the arrested person’s individual dangerousness to the security of the State, and its purpose is preventative. The State must demonstrate through sufficient administrative evidence that that arrested person is an “unlawful combatant” insofar that he took significant part, directly or indirectly, in contributing to warfare, or that the arrested person was a member of an organization that carries out warfare activity and then to consider his link and contribution to the organization’s warfare activity, in a broad sense. Only after proving meeting the definition above may the State make use of the presumption in section 7 of the Act whereby releasing the arrested person would harm the security of the State, so long as it is not proven otherwise.

 

The right to personal liberty is a constitutional right. However, it is not absolute and infringing it may be required in order to protect other public essential interests. The Court must consider whether the infringement upon the right to personal liberty is consistent with the conditions of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, when it should be remembered that the Court does not easily strike down legal provisions. Under the circumstances, the extent of the infringement of the constitutional right to personal liberty is significant and severe. But the purpose of the Act, in light of a reality of daily terrorism is worthy, and therefore the legislature should be granted a relatively wide range of maneuvering in electing the appropriate means to realize the legislative intent. Considering this and additional factors, the Act meets the proportionality tests. Therefore the Act’s infringement upon the constitutional right to personal liberty is not to an extent beyond necessary, so that the Act meets the conditions of the Limitations Clause and there is no constitutional cause to intervene in it.

 

Israel should not have released the appellants, being residents of a liberated occupied territory, when the military rule in the Strip ended because the personal danger they pose continued in light of the ongoing warfare against the State of Israel. As for the individual incarceration warrants lawfully issued against the appellants, then the evidence reveals their tight connection with Hezbollah, their individual dangerousness was proven even without relying on the presumption in section 7 of the Act. There is no place to revoke the incarceration warrants. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
majority opinion
Full text of the opinion: 

 

 

CrimA 6659/06

CrimA 1757/07

CrimA 8228/07

  CrimA 3261/08

 

1 . A

2.  B

v

State of Israel

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[5 March 2007]

Before President D. Beinisch and Justices E.E. Levy, A. Procaccia

 

 

Appeals of the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) on 16 July 2006, 19 July 2006, 13 February 2007 and 3 September 2007, and the decision of the Tel-Aviv-Jaffa District Court (Justice D. Rozen) on 20 March 2008.

 

Legislation cited:

Internment of Unlawful Combatants Law, 5762-2002

Emergency Powers (Detentions) Law, 5739-1979

 

Israel Supreme Court cases cited:

[1]        CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 44(1) 721.

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

[3]        HCJ 9098/01 Ganis v. Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR 505.

[4]        HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (2006) (unreported).

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

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

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

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

[9]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2006] IsrSC 60(2) 477; [2005] (2) IsrLR 106. 

[10]      HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior (2006) (not yet reported); [2006] (1) IsrLR 442.

[11]      HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[12]      HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [2006] (1) IsrLR 260.

[13]      HCJ 9132/07 Elbassiouni v. Prime Minister (2008) (unreported).

[14]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[15]      HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247.

[16]      HCJ 11026/05 A v. IDF Commander (2005) (unreported).

[17]       CrimA 3660/03 Abeid v. State of Israel (2005) (unreported).

[18]      HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures (2003) (unreported).

[19]      HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[20]      HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior (2005) (unreported).

[21]      CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) (2001) (unreported).

[22]      HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[23]      CrimA 4596/05 Rosenstein v. State of Israel (2005) (unreported); [2005] (2) IsrLR 232.

[24]      CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

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

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

[27]      HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[28]      HCJ 6893/05 Levy v. Government of Israel [2005] IsrSC 59(2) 876.

[29]      HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[30]      HCJ 5627/02 Saif v. Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.

[31]      EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [1985] IsrSC 39(2) 225;  IsrSJ 8 83.

[32]      CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[33]      HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[34]      AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

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

[36]      CrimApp 8780/06 Sarur v. State of Israel (2006) (unreported).

[37]      HCJ 403/81 Jabar v. Military Commander [1981] IsrSC 35(4) 397.

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

[39]      ADA 4794/05 Ufan v. Minister of Defence (2005) (unreported).

[40]      ADA 7/94 Ben-Yosef v. State of Israel (1994) (unreported).

[41]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[42]      HCJ 5445/93 Ramla Municipality v. Minister of the Interior [1996] IsrSC 50(1) 397.

[43]        HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [1998] IsrSC 52(1) 75.

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

[45]      ADA 334/04 Darkua v. Minister of the Interior [2004] IsrSC 58(3) 254.

[46]      HCJ 4400/98 Braham v. Justice Colonel Shefi [1998] IsrSC 52(5) 337.

[47]      HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria (2004) (unreported).

[48]      CrimApp 3514/97 A v. State of Israel (1997) (unreported).

[49]      HCJ 5994/03 Sadar v. IDF Commander in West Bank (2003) (unreported).

[50]      CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006]  (unreported), 2006 (1) IsrLR 320.

[51]      HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 843.

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

[53]         HCJ 2901/02 Centre for Defence of the Individual v. IDF  Commander in West Bank [2002] IsrSC 56(3) 19.

[54]    CrimA 1221/06 Iyyad v. State of Israel (2006) (unreported).

 

 

For the appellants - H. Abou-Shehadeh

For the respondent - Z. Goldner, O.J. Koehler, S. Nitzan, Y. Roitman.

 

JUDGMENT

 

President D. Beinisch:

Before us are appeals against the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi), in which the internment of the appellants under the Internment of Unlawful Combatants Law, 5762-2002 (hereinafter: "the Internment of Unlawful Combatants Law" or "the Law") was upheld as lawful. Apart from the particular concerns of the appellants, the appeals raise fundamental questions concerning the interpretation of the provisions of the Internment of Unlawful Combatants Law and the extent to which the Law is consistent with international humanitarian law, as well as the constitutionality of the arrangements prescribed in the Law.

The main facts and sequence of events

1.  The first appellant is an inhabitant of the Gaza Strip, born in 1973, who was placed under administrative detention on 1 January 2002 by virtue of the Administrative Detentions (Temporary Provision) (Gaza Strip Region) Order (no. 941), 5748-1988. The detention of the first appellant was extended from time to time by the Military Commander and upheld on judicial review by the Gaza Military Court. The second appellant is also an inhabitant of Gaza, born in 1972, and he was placed under administrative detention on 24 January 2003 pursuant to the aforesaid Order. The detention of the second appellant was also extended from to time and reviewed by the Gaza Military Court.

On 12 September 2005 a statement was issued by the Southern District Commander with regard to the end of military rule in the region of the Gaza Strip. On the same day, in view of the change in circumstances and also the change in the relevant legal position, internment orders were issued against the appellants; these were signed by the Chief of Staff by virtue of his authority under s. 3 of the Internment of Unlawful Combatants Law, on which the case before us focuses. On 15 September 2005 the internment orders were brought to the notice of the appellants. At a hearing that took place pursuant to the Law, the appellants indicated that they did not wish to say anything, and on 20 September 2005 the Chief of Staff decided that the internment orders under the aforesaid Law would remain in force.

2.  On 22 September 2005 a judicial review hearing began in the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) in the appellants' case. On 25 January 2006 the District Court held that there had been no defect in the procedure of issuing internment orders against the appellants, and that all the conditions laid down in the Internment of Unlawful Combatants Law were satisfied, including the fact that their release would harm state security. The appellants appealed this decision to the Supreme Court, and on 14 March 2006 their appeal was denied (Justice E. Rubinstein). In the judgment it was held that the material presented to the court evinced the appellants' clear association with the Hezbollah organization, as well as their participation in acts of combat against the citizens of Israel prior to their detention. The court emphasized in this context the personal threat presented by the two appellants and the risk that they would resume their activities if they were released, as could be seen from the material presented to the court.

3.  On 9 March 2006 the periodic judicial review pursuant to s. 5(c) of the Law began in the District Court. In the course of this review, not only were the specific complaints of the appellants against their internment considered, but also fundamental arguments against the constitutionality of the Law, in the framework of an indirect attack on its provisions. On 16 July 2006 the District Court gave its decision with regard to the appellant's specific claims. In this decision it was noted that from the information that was presented to the court it could be seen that the appellants were major activists in the Hezbollah organization who would very likely return to terrorist activities if they were released now, and that their release was likely to harm state security. On 19 July 2006 the District Court gave its decision on the fundamental arguments raised by the appellants concerning the constitutionality of the Law. The District Court rejected the appellants' argument in this regard too, and held that the Law befitted the values of the State of Israel, its purpose was a proper one and its violation of the appellants' rights was proportionate. The court said further that in its opinion the Law was also consistent with the principles of international law. The appeal in CrimA 6659/06 is directed at these two decisions of 16 July 2006 and 19 July 2006.

On 13 February 2007 the District Court gave a decision in a second periodic review of the appellants' detention. In its decision the District Court approved the internment orders, discussed the appellants' importance to the activity of the Hezbollah organization as shown by the testimonies of experts who testified before it and said that their detention achieved a preventative goal of the first order. The appeal in CrimA 1757/07 is directed at this decision.

On 3 September 2007 the District Court gave its decision in the third periodic review of the appellants' internment. In its decision the District Court noted that the experts remained steadfast in their opinion that it was highly probable that the two appellants would resume their terrorist activity if they were released, and as a result the operational abilities of the Hezbollah infrastructure in the Gaza Strip would be enhanced and the risks to the State of Israel and its inhabitants would increase. It also said that the fact that the Hamas organization had taken control of the Gaza Strip increased the aforesaid risks and the difficulty of contending with them. The court emphasized that there was information with regard to each of the appellants concerning their desire to resume terrorist activity if they were released, and that they had maintained their contacts in this area even while they were imprisoned. In such circumstances, the District Court held that the passage of time had not reduced the threat presented by the appellants, who were the most senior persons in the Hezbollah terrorist infrastructure in the Gaza Strip, and that there was no basis for cancelling the internment orders made against them. The appeal in CrimA 8228/07 is directed at this decision.

On 20 March 2008 the District Court gave its decision in the fourth periodic review of the appellants' detention. During the hearing, the court (Justice D. Rozen) said that the evidence against each of the two appellants contained nothing new from recent years. Nevertheless, the court decided to approve their continued internment after it found that each of the two appellants was closely associated with the Hezbollah organization; both of them were intensively active in that organization; the existing evidence regarding them showed that their return to the area was likely to act as an impetus for terrorist attacks, and the long period during which they had been imprisoned had not reduced the danger that they represent. The appeal in CrimA 3261/08 was directed at this decision.

Our judgment therefore relates to all of the aforesaid appeals together.

The arguments of the parties

4.  The appellants' arguments before us, as in the trial court, focused on two issues: first, the appellants raised specific arguments concerning the illegality of the internment orders that were made in their cases, and they sought to challenge the factual findings reached by the District Court with regard to their membership in the Hezbollah organization and their activity in that organization against the security of the State of Israel. Secondly, once again the appellants indirectly raised arguments of principle with regard to the constitutionality of the Law. According to them, the Law in its present format violates the rights to liberty and dignity enshrined in Basic Law: Human Dignity and Liberty, in a manner that does not satisfy the conditions of the limitation clause in the Basic Law. The appellants also claimed that the Law is inconsistent with the rules of international humanitarian law that it purports to realize. Finally the appellants argued that the end of Israel's military rule in the Gaza Strip prevents it, under the laws of war, from detaining the appellants.

The state's position was that the petitions should be denied. With regard to the specific cases of the appellants, the state argued that the internment orders in their cases were made lawfully and they were in no way improper. With regard to the arguments in the constitutional sphere, the state argued that the law satisfies the tests of the limitation clause in Basic Law: Human Dignity and Liberty, since it was intended for a proper purpose and its violation of personal liberty is proportionate. With regard to the rules of international law applicable to the case, the state argued that the Law is fully consistent with the norms set out in international law with regard to the detention of "unlawful combatants".

5.  In order to decide the questions raised by the parties before us, we shall first address the background that led to the enactment of the Internment of Unlawful Combatants Law and its main purpose. With this in mind, we shall consider the interpretation of the statutory definition of "unlawful combatant" and the conditions that are required to prove the existence of a ground for detention under the law. Thereafter we shall examine the constitutionality of the arrangements prescribed in the law and finally we shall address the specific detention orders made in the appellants' cases.

The Internment of Unlawful Combatants Law - background to its enactment and its main purpose

6.  The Internment of Unlawful Combatants Law gives the state authorities power to detain "unlawful combatants" as defined in s. 2 of the Law, i.e. persons who participate in hostile acts or who are members of forces that carry out hostile acts against the State of Israel, and who do not fulfil the conditions that confer prisoner of war status under international humanitarian law. As will be explained below, the Law allows the internment of foreign persons who belong to a terrorist organization or who participate in hostile acts against the security of the state, and it was intended to prevent these persons from returning to the cycle of hostilities against Israel.

The original initiative to enact the Law arose following the judgment in CrimFH 7048/97 A v. Minister of Defence [1], in which the Supreme Court held that the state did not have authority to hold Lebanese nationals in detention by virtue of administrative detention orders, if the sole reason for their detention was to hold them as "bargaining chips" in order to obtain the release of captives and missing servicemen. Although the original bill came into being against the background of a desire to permit the holding of prisoners as "bargaining chips", the proposal underwent substantial changes during the legislative process after many deliberations on this matter in the Knesset Foreign Affairs and Defence Committee, chaired by MK Dan Meridor. On 4 March 2002, the Internment of Unlawful Combatants Law was passed by the Knesset. Its constitutionality has not been considered by this court until now.

At the outset it should be emphasized that the examination of the historical background to the enactment of the Law and the changes that were made to the original bill, what was said during the Knesset debates, the wording of the Law as formulated at the end of the legislative process, and the effort that was made to ensure that it conformed to the provisions of international humanitarian law evident from the purpose clause of the statute, which we shall address below -  all show that the Internment of Unlawful Combatants Law as it crystallized in the course of the legislative process was not intended to allow hostages to be held as "bargaining chips" for the purpose of obtaining the release of Israeli captives and missing servicemen being held in enemy territory, as alleged by the appellants before us. The plain language of the Law and its legislative history indicate that the Law was intended to prevent a person who endangers the security of the state due to his activity or his membership of a terrorist organization from returning to the cycle of combat. Thus, for example, MK David Magen, who was chairman of the Foreign Affairs and Defence Committee at the time of the debate in the plenum of the Knesset prior to the second and third readings, said as follows:

'The draft law is very complex and as is known, it gave rise to many disagreements during the Committee's deliberations. The Foreign Affairs and Defence Committee held approximately ten sessions at which it discussed the difficult questions raised by this Bill and considered all the possible ramifications of its passing the second and third readings. The Bill before you is the result of considerable efforts to present an act of legislation whose provisions are consistent with the rules of international humanitarian law and which satisfies the constitutional criteria, while being constantly mindful of and insistent upon maintaining a balance between security and human rights...

I wish to emphasize that the Bill also seeks to determine that a person who is an unlawful combatant, as defined in the new Law, will be held by the state as long as he represents a threat to its security. The criterion for interning a person is that he is dangerous. No person should be interned under the proposal as a punishment or, as many tend to think erroneously, as a bargaining chip. No mistake should be made in this regard. Nonetheless, we should ask ourselves whether it is conceivable that the state should release a prisoner who will return to the cycle of hostilities against the State of Israel?' [emphasis added].

The Law was therefore not intended to allow prisoners to be held as "bargaining chips". The purpose of the Law is to remove from the cycle of hostilities a person who belongs to a terrorist organization or who participates in hostile acts against the State of Israel. The background to this is the harsh reality of murderous terrorism, which has for many years plagued the inhabitants of the state, harmed the innocent and indiscriminately taken the lives of civilians and servicemen, the young and old, men, women and children. In order to realize the aforesaid purpose, the Law applies only to persons who take part in the cycle of hostilities or who belong to a force that carries out hostile acts against the State of Israel, and not to innocent civilians. We shall return to address the security purpose of the Law below.

Interpreting the provisions of the Law

7. As we have said, in their arguments before us the parties addressed in detail the question of the constitutionality of the arrangements prescribed in the Law. In addition, the parties addressed at length the question of whether the arrangements prescribed in the Internment of Unlawful Combatants Law are consistent with international law. The parties addressed this question, inter alia, because in s. 1 of the Law, which is the purpose section, the Law states that it is intended to realize its purpose "in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." As we shall explain below, this declaration is a clear expression of the basic outlook prevailing in our legal system that the existing law should be interpreted in a manner that is as consistent as possible with international law.

In view of the two main focuses of the basic arguments of the parties before us - whether the arrangements prescribed in the Law are constitutional and whether they are consistent with international humanitarian law - we should clarify that both the constitutional scrutiny from the viewpoint of the limitation clause and the question of compliance with international humanitarian law may be affected by the interpretation of the arrangements prescribed in the Law. Before deciding on the aforesaid questions, therefore, we should first consider the interpretation of the principal arrangements prescribed in the Internment of Unlawful Combatants Law. These arrangements will be interpreted in accordance with the language and purpose of the Law, and on the basis of two interpretive presumptions that exist in our legal system: one, the presumption of constitutionality, and the other, the presumption of interpretive compatibility with the norms of international law - both those that are part of Israeli law and those that Israel has taken upon itself amongst its undertakings in the international arena.

8.  Regarding the presumption of constitutionality: in our legal system the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently. According to this presumption, the examination of a provision of statute involves an attempt to interpret it so that it is consistent with the protection that the Basic Laws afford to human rights. This realizes the presumption of normative harmony, whereby "we do not assume that a conflict exists between legal norms, and every possible attempt is made to achieve 'uniformity in the law' and harmony between the various norms" (A. Barak, Legal Interpretation - the General Theory of Interpretation (1992), at p. 155). In keeping with the presumption of constitutionality, we must, therefore, examine the meaning and scope of the internment provisions in the Internment of Unlawful Combatants Law while aspiring to uphold, insofar as possible, the provisions of Basic Law: Human Dignity and Liberty. It should immediately be said that the internment powers prescribed in the Law significantly and seriously violate the personal liberty of the prisoner. This violation is justified in appropriate circumstances in order to protect state security. However, in view of the magnitude of the violation of personal liberty, and considering the exceptional nature of the means of detention that are prescribed in the Law, an interpretive effort should be made in order to minimize the violation of the right to liberty as much as possible so that it is proportionate to the need to achieve the security purpose and does not go beyond this. Such an interpretation will be compatible with the basic conception prevailing in our legal system, according to which a statute should be upheld by interpretive means and the court should refrain, insofar as possible, from setting it aside on constitutional grounds. In the words of President A. Barak:

'It is better to achieve a reduction in the scope of a statute by interpretive means rather than  having to achieve the same reduction by declaring a part of a statute void because it conflicts with the provisions of a Basic Law.... A reasonable interpretation of a statute is preferable to a decision on the question of its constitutionality' (HCJ 4562/92 Zandberg v. Broadcasting Authority [2], at p. 812; see also HCJ 9098/01 Ganis v. Ministry of Building and Housing [3], at p. 276).

9. With respect to the presumption of conformity to international humanitarian law: as we have said, s. 1 of the Law declares explicitly that its purpose is to regulate the internment of unlawful combatants "… in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." The premise in this context is that an international armed conflict prevails between the State of Israel and the terrorist organizations that operate outside Israel (see HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [4], at paras. 18, 21; see also A. Cassese, International Law (second edition, 2005), at p. 420).

The international law that governs an international armed conflict is anchored mainly in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereinafter: "the Hague Convention") and the regulations appended to it, whose provisions have the status of customary international law (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [5], at p. 793; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [6], at p. 827; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at p. 364; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: "Fourth Geneva Convention"), whose customary provisions constitute a part of the law of the State of Israel and some of which have been considered in the past by this court (Ajuri v. IDF Commander in West Bank [7], at page 364; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [8]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [9], at para. 14); and the Protocol Additional to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: "First Protocol"), to which Israel is not a party, but whose customary provisions also constitute a part of the law of the State of Israel (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 20). In addition, where there is a lacuna in the laws of armed conflict set out above, it is possible to fill it by resorting to international human rights law (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 18; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep. 226, at page 240; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 43 ILM 1009 (2004)).

It should be emphasized that no one in this case disputes that an explicit statutory provision enacted by the Knesset overrides the provisions of international law (see in this regard President A. Barak in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 17). However, according to the presumption of interpretive consistency, an Israeli act of legislation should be interpreted in a manner that is consistent, insofar as possible, with the norms of international law to which the State of Israel is committed (see HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [11], at p. 847; HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [12], at para. 37). According to this presumption, which as we have said is clearly expressed in the purpose clause of the Internment of Unlawful Combatants Law, the arrangements prescribed in the Law should be interpreted in a manner that is as consistent as possible with the international humanitarian law that governs the matter.

Further to the aforesaid it should be noted that when we approach the task of interpreting provisions of the statute in a manner consistent with the accepted norms of international law, we cannot ignore the fact that the provisions of international law that exist today have not been adapted to changing realities and to the phenomenon of terrorism that is changing the face and characteristics of armed conflicts and those who participate in them (see in this regard the remarks of President A. Barak in Ajuri v. IDF Commander in West Bank [7], at pp. 381-382). In view of this, we should do our best to interpret the existing laws in a manner that is consistent with the new realities and the principles of international humanitarian law.

10.  Bearing all the above in mind, let us now turn to the interpretation of the statutory definition of "unlawful combatant" and of the conditions required for proving the existence of cause for internment under the Law. The presumption of constitutionality and the provisions of international law to which the parties referred will be our interpretive tools and they will assist us in interpreting the provisions of the Law and in evaluating the nature and scope of the power of internment it prescribes.

The definition of "unlawful combatant" and the scope of its application

11. S. 2 of the Law defines "unlawful combatant" as follows:

'Definitions

2.  In this law -

"unlawful combatant" - a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply to him;

This statutory definition of "unlawful combatant" relates to those who take part in hostile acts against the State of Israel or who are members of a force that perpetrates such acts, and who are not prisoners of war under international humanitarian law. In this regard two points should be made: first, from the language of the aforesaid s. 2 it is clear that it is not essential for someone to take part in hostile acts against the State of Israel; his membership in a "force perpetrating hostile acts" - i.e., a terrorist organization - may include that person within the definition of "unlawful combatant". We will discuss the significance of these two alternatives in the definition of "unlawful combatant" below (para. 21 .).

Secondly, as noted above, the purpose clause in the Law refers explicitly to the provisions of international humanitarian law. The definition of "unlawful combatant" in the aforesaid s. 2 also refers to international humanitarian law when it provides that the Law applies to a person who does not enjoy prisoner of war status under the Third Geneva Convention. In general, the rules of international humanitarian law were not intended to apply to the relationship between the state and its citizens (see, for example, the provisions of art. 4 of the Fourth Geneva Convention, according to which a "protected civilian" is someone who is not a citizen of the state that is holding him in circumstances of an international armed conflict). The explicit reference by the legislature to international humanitarian law, together with the stipulation in the wording of the Law that prisoner of war status does not apply, show that the Law was intended to apply only to foreign parties who belong to a terrorist organization that acts against the security of the state. We are not unaware that the draft law of 14 June 2000 contained an express provision stating that the Law would not apply to Israeli inhabitants (and also to inhabitants of the territories), except in certain circumstances that were set out therein (see s. 11 of the Internment of Enemy Forces Personnel Who Are Not Entitled to a Prisoner of War Status Bill, 5760-2000, Bills 5760, no. 2883, at p. 415). This provision was omitted from the final wording of the Law. Nevertheless, in view of the explicit reference in the Law to international humanitarian law and the laws concerning prisoners of war as stated above, the inevitable conclusion is that according to its wording and purpose, the Law was not intended to apply to local parties (citizens and residents of Israel) who endanger state security. For these other legal measures exist that are intended for a security purpose, which we shall address below.

It is therefore possible to sum up and say that an "unlawful combatant" under s. 2 of the Law is a foreign party who belongs to a terrorist organization that acts against the security of the State of Israel. This definition may include residents of a foreign country that maintains a state of hostilities against the State of Israel, who belong to a terrorist organization that acts against the security of the State and who satisfy the other conditions of the statutory definition of "unlawful combatant". This definition may also include inhabitants of the Gaza Strip, which today is no longer under belligerent occupation. In this regard it should be noted that since the end of Israeli military rule in the Gaza Strip in September 2005, the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties of an occupying power under international law, including the main duty of maintaining public order and security. Any attempt to impose the authority of the State of Israel on the Gaza Strip is likely to involve complex and prolonged military operations. In such circumstances, where the State of Israel has no real ability to control what happens in the Gaza Strip in an effective manner, the Gaza Strip should not be regarded as a territory that is subject to belligerent occupation from the viewpoint of international law, even though the unique situation that prevails there imposes certain obligations on the State of Israel vis-?-vis the inhabitants of the Gaza Strip (for the position that the Gaza Strip is not now subject to a belligerent occupation, see Yuval Shany, "Faraway So Close: The Legal Status of Gaza after Israel's Disengagement," 8 Yearbook of International Humanitarian Law 2005 (2007) 359; see also the judgment of the International Court of Justice in Democratic Republic of the Congo v. Uganda, where the importance of a physical presence of military forces was emphasized for the existence of a state of occupation: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda (ICJ, 19 December 2005), at para.173; with regard to the existence of certain obligations that the State of Israel has in the prevailing circumstances vis-?-vis the inhabitants of the Gaza Strip, see HCJ 9132/07 Elbassiouni v. Prime Minister [13]. In our case, in view of the fact that the Gaza Strip is no longer under the effective control of the State of Israel, we must conclude that the inhabitants of the Gaza Strip constitute foreign parties who may be subject to the Internment of Unlawful Combatants Law in view of the nature and purpose of this Law.

With regard to the inhabitants of the territory (Judaea and Samaria) that is under the effective control of the State of Israel, for the reasons that will be stated later (in para. 36 below), I tend to the opinion that insofar as necessary for security reasons, the administrative detention of these inhabitants should be carried out pursuant to the security legislation that applies in the territories and not by virtue of the Internment of Unlawful Combatants Law. However, the question of the application of the aforesaid Law to the inhabitants of the territories does not arise in the circumstances of the case before us and it may therefore be left undecided.

Conformity of the definition of "unlawful combatant" to a category recognized by international law

12. The appellants argued that the definition of "unlawful combatant" in s. 2 of the Law is contrary to the provisions of international humanitarian law, since international law does not recognize the existence of an independent and separate category of "unlawful combatants". According to their argument, there are only two categories in international law - "combatants" and "civilians", who are subject to the provisions and protections enshrined in the Third and Fourth Geneva Conventions respectively. In their view international law does not have an intermediate category that includes persons who are not protected by either of these conventions.

With regard to the appellants' aforesaid arguments we would point out that the question of the conformity of the term "unlawful combatant" to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel [4], in which it was held that the term "unlawful combatants" does not constitute a separate category, but rather, a sub-category of "civilians" recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of "civilians" includes everyone who is not a "combatant". We are therefore dealing with a negative definition. In the words of President A. Barak:

 'The approach of customary international law is that "civilians" are persons who are not "combatants" (see article 50(1) of the First Protocol, and Sabel, supra, at page 432). In the Blaskic case, the International Tribunal for War Crimes in Yugoslavia said that civilians are "persons who are not, or no longer, members of the armed forces" (Prosecutor v. Blaskic (2000), Case IT-95-14-T, at paragraph 180). This definition is of a "negative" character. It derives the concept of "civilians" from it being the opposite of "combatants". Thus it regards unlawful combatants, who as we have seen are not "combatants", as civilians' (ibid., at para. 26 of the opinion of President A. Barak).

In this context, two additional points should be made: first, the determination that "unlawful combatants" belong to the category of "civilians" in international law is consistent with the official interpretation of the Geneva Conventions, according to which in an armed conflict or a state of occupation, every person who finds himself in the hands of the opposing party is entitled to a certain status under international humanitarian law - the status of prisoner of war, which is governed by the Third Geneva Convention, or the status of protected civilian, which is governed by the Fourth Geneva Convention:

'There is no "intermediate status"; nobody in enemy hands can be outside the law' (O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva, 1950), commentary to art. 4, at page 51).

(See also S. Borelli, 'Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the "War on Terror",' 87(857) IRRC 39 (2005), at pp. 48-49).

Secondly, it should be emphasized that prima facie, the statutory definition of "unlawful combatants" under s. 2 of the Law applies to a broader group of people than the group of "unlawful combatants" discussed in Public Committee against Torture in Israel v. Government of Israel [4], in view of the difference in the measures under discussion: the judgment in Public Committee against Torture in Israel v. Government of Israel [4] considered the legality of the measure of a military attack intended to cause the death of an "unlawful combatant". According to international law, it is permitted to attack an "unlawful combatant" only during the period of time when he is taking a direct part in the hostilities. By contrast, the Internment of Unlawful Combatants Law deals with the measure of internment. For the purposes of internment under the Law, it is not necessary for the "unlawful combatant" to participate directly in the hostilities, nor is it essential that the internment take place during the period of time that he is participating in hostile acts; all that is required is that the conditions of the definition of "unlawful combatant" in s. 2 of the Law are proved. This statutory definition does not conflict with the provisions of international humanitarian law since, as we shall clarify clear below, the Fourth Geneva Convention also permits the detention of a protected "civilian"' who endangers the security of the detaining state. Thus we see that our reference to the judgment in Public Committee against Torture in Israel v. Government of Israel [4] was not intended to indicate that an identical issue was considered in that case. Its purpose was to support the finding that the term "unlawful combatants" in the Law under discussion does not create a separate category of treatment from the viewpoint of international humanitarian law; rather, it constitutes a sub-group of the category of "civilians".

13.   Further to our finding that "unlawful combatants" belong to the category of "civilians" from the viewpoint of international law, it should be noted that this court has held in the past that international humanitarian law does not grant "unlawful combatants" the same degree of protection to which innocent civilians are entitled, and that in this respect there is a difference from the viewpoint of the rules of international law between "civilians" who are not "unlawful combatants" and "civilians" who are "unlawful combatants". (With regard to the difference in the scope of the protection from a military attack upon "civilians" who are not "unlawful combatants" as opposed to "civilians" who are "unlawful combatants", see Public Committee against Torture in Israel v. Government of Israel [4], at paras. 23-26). As we shall explain below, in the present context the significance of this is that someone who is an "unlawful combatant" is subject to the Fourth Geneva Convention, but according to the provisions of the aforesaid Convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.

In concluding these remarks it should be noted that although there are disagreements on principle between the parties before us as to the scope of the international laws that apply to "unlawful combatants", including the application of the Fourth Geneva Convention and the scope of the rights of which they may be deprived for security reasons under art. 5 of the Convention, we are not required to settle most of these disagreements. This is due to the state's declaration that in its opinion the Law complies with the most stringent requirements of the Fourth Geneva Convention, and because of the assumption that the appellants enjoy all the rights that are enshrined in this Convention (see paras. 334 and 382 of the state's response).

14.  In summary, in view of the purpose clause of the Internment of Unlawful Combatants Law, according to which the Law was intended to regulate the status of "unlawful combatants" in a manner that is consistent with the rules of international humanitarian law, and bearing in mind the finding of this court in Public Committee against Torture in Israel v. Government of Israel [4] that "unlawful combatants" constitute a subcategory of "civilians" under international law, we are able to determine that, contrary to the appellants' claim, the Law does not create a new reference group from the viewpoint of international law; it merely determines special provisions for the detention of "civilians" (according to the meaning of this term in international humanitarian law) who are "unlawful combatants".

The nature of internment of "Unlawful Combatants" under the Law - administrative detention

15. Now that we have determined that the definition of "unlawful combatant" in the Law is not incompatible with division into the categories  of "civilians" as opposed to "combatants"' in international law and in the case law of this court, let us proceed to examine the provisions of the Law that regulate the internment of unlawful combatants. S. 3(a) of the law provides the following:

 

'Internment of Unlawful Combatant

3. (a) Where the Chief of Staff has reasonable cause to believe that a person being held by state authorities is an unlawful combatant and that his release will harm state security, he may issue an order under his hand, directing that such person be interned at a place to be determined (hereinafter: "internment order"); an internment order shall include the grounds for internment, without prejudicing state security requirements.'

S. 7 of the Law adds a probative presumption in this context, which provides as follows:

'Presumption

 7.  For the purposes of this Law, a person who is a member of a force perpetrating hostile acts against the State of Israel or who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm state security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise.'

The appellants argued before us that the internment provisions in the Law create, de facto, a third category of detention, which is neither criminal arrest nor administrative detention, and which has no recognition in Israeli law or international law. We cannot accept this argument. The mechanism provided in the Law is a mechanism of administrative detention in every respect, which is carried out in accordance with an order of the Chief of Staff, who is an officer of the highest security authority. As we shall explain below, we are dealing with an administrative detention whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is participating in the organization's operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.

16.  It should be noted that the actual authority provided in the Law for the administrative detention of a "civilian" who is an "unlawful combatant" due to the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus art. 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting "control and security measures" that are justified on security grounds. The wording of the aforesaid art. 27 is as follows:

'... 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.'

Regarding the types of control measures that are required for protecting state security, art. 41 of the Convention prohibits the adoption of control measures that are more severe than assigned residence or internment in accordance with the provisions of arts. 42-43 of the Convention. Art. 42 entrenches the rule that a "civilian" should not be interned unless this is "absolutely necessary" for the security of the detaining power. Art. 43 proceeds to obligate the detaining power to approve the detention by means of judicial or administrative review, and to hold periodic reviews of the continuing need for internment at least twice a year. Art. 78 of the Convention concerns the internment of protected civilians who are inhabitants of a territory that is held by an occupying power, and it states that it is possible to invoke various security measures against them for essential security reasons, including assigned residence and internment. Thus we see that the Fourth Geneva Convention allows the internment of protected "civilians" in administrative detention, when this is necessary for reasons concerning the essential security needs of the detaining power.

17.  In concluding these remarks we would point out that the appellants argued before us that the aforesaid provisions of the Fourth Geneva Convention are not applicable in their particular case. According to them, arts. 41-43 of the Convention concern the detention of protected civilians who are present in the territory of a party to a dispute, whereas the appellants were taken into detention when they were in the Gaza Strip in the period prior to the implementation of the disengagement plan, when the status of the Gaza Strip was that of territory under belligerent occupation.  They argue that art. 78 of the Fourth Geneva Convention - relating to administrative detention in occupied territory - is not applicable to their case either, in view of the circumstances that arose after the implementation of the disengagement plan and the departure of IDF forces from the Gaza Strip. In view of this, the appellants argued that no provision of international humanitarian law exists that allows them to be placed in administrative detention, and therefore they argued that their detention under the Internment of Unlawful Combatants Law is contrary to the provisions of international law.

Our reply to these arguments is that the detention provisions set out in the Fourth Geneva Convention were intended to apply and realize the basic principle contained in the last part of art. 27 of the Convention, which was cited above. As we have said, this article provides that the parties to a dispute may adopt security measures against protected civilians insofar as this is required due to the belligerence. The principle underlying all the detention provisions in the Fourth Geneva Convention is that "civilians" may be detained for security reasons to the extent necessitated by the threat that they represent. According to the aforesaid Convention, the power of detention for security reasons exists, whether we are concerned with the inhabitants of an occupied territory or with foreigners who were apprehended in the territory of one of the states involved in the dispute. In the appellants' case, although Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ceased; therefore, detention of the appellants within the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.

The cause of detention under the Law - the requirement of an individual threat to security and the effect of the interpretation of the statutory definition of "unlawful combatant"

18.  One of the first principles of our legal system is that administrative detention is conditional upon the existence of a cause of detention that derives from the individual threat posed by the detainee to the security of the state. This was discussed by President Barak when he said:

'[For cause of detention to exist] the circumstances of the detention must be such that they arouse, with respect to [the prisoner] - to him personally and not to someone else - concern that threatens security, whether because he was apprehended in the combat area when he was actually fighting or carrying out acts of terrorism, or because there is a concern that he is involved in fighting or terrorism' (Marab v. IDF Commander in Judaea and Samaria [8], at p. 367).

The requirement of an individual threat for the purpose of placing a person in administrative detention is an essential part of the protection of the constitutional right to dignity and personal liberty. This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish a person for acts that have already been committed or to deter others from committing them; its purpose is to prevent the tangible risk presented by the acts of the prisoner to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank [7], at pp. 370-372, and the references cited there).

19.  It will be noted that a personal threat to state security posed by the detainee is also a requirement under the principles of international humanitarian law. Thus, for example, in his interpretation of arts. 42 and 78 of the Fourth Geneva Convention, Pictet emphasizes that the state should resort to the measure of detention only when it has serious and legitimate reasons to believe that the person concerned endangers its security. In his interpretation Pictet discusses membership in organizations whose goal is to harm the security of the state as a ground for deeming a person to be a threat, but he emphasizes the meta-principle that the threat is determined in accordance with the individual activity of that person. In Pictet's words:

'To justify recourse to such measures, the state must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security' (J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at pp. 258-259).

20. No one here disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principles, whereby administrative detention is conditional upon proving the existence of cause that establishes an individual threat. Indeed, an examination of the provisions of the Law in accordance with the aforesaid principles reveals that the Law does not allow a person to be detained arbitrarily, and that the authority to detain by virtue of the Law is conditional upon the existence of a cause of detention that is based on the individual threat represented by the prisoner: first, the definition of "unlawful combatant" in s. 2 of the Law requires that it be proven that the prisoner himself took part in or belonged to a force that is carrying out hostilities against the State of Israel, the significance of which we shall address below. Secondly, s. 3(a) of the Law expressly provides that the cause of detention under the Law arises only with regard to someone for whom there is reasonable basis to believe that "his release will harm state security." S. 5(c) of the Law goes on to provide that the District Court will set aside a detention order that was issued pursuant to the Law only when the release of the prisoner "will not harm state security" (or when there are special reasons that justify the release). To this we should add that according to the purpose of the Law, administrative detention is intended to prevent the "unlawful combatant" from returning to the cycle of hostilities, indicating that he was originally a part of that cycle.

The dispute between the parties before us in this context concerns the level of the individual threat that the state must prove for the purpose of administrative detention under the Law. This dispute arises due to the combination of two main provisions of the Law: one is the provision in s. 2 of the Law, a simple reading of which states that an "unlawful combatant" is not only someone who takes a direct or indirect part in hostile acts against the State of Israel, but also a person who is a "member of a force perpetrating hostile acts." The other is the probative presumption in s. 7 of the Law, whereby a person who is a member of a force that perpetrates hostile acts against the State of Israel shall be regarded as someone whose release will harm the security of the state unless the contrary is proved. On the basis of a combination of these two provisions of the Law, the state argued that it is sufficient to prove that a person is a member of a terrorist organization in order to prove his individual danger to the security of the state in such a manner that provides cause for detention under the Law. By contrast, the appellants' approach was that relying upon abstract "membership" in an organization that perpetrates hostile acts against the State of Israel as a basis for administrative detention under the Law renders meaningless the requirement of proving an individual threat, contrary to constitutional principles and international humanitarian law.

21. Resolution of the aforesaid dispute is largely affected by the interpretation of the definition of "unlawful combatant" in s. 2 of the Law. As we have said, the statutory definition of "unlawful combatant" contains two alternatives: the first, "a person who has participated either directly or indirectly in hostile acts against the State of Israel", and the second, a person who is "a member of a force perpetrating hostile acts against the State of Israel," when the person concerned does not satisfy the conditions granting prisoner of war status under international humanitarian law. These two alternatives should be interpreted with reference to the security purpose of the Law and in accordance with the constitutional principles and international humanitarian law that we discussed above, which require proof of an individual threat as grounds for administrative detention.

With respect to the interpretation of the first alternative concerning "a person who has participated either directly or indirectly in hostile acts against the State of Israel " - according to the legislative purpose and the principles that we have discussed, the obvious conclusion is that in order to intern a person it is not sufficient that he made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that a person is an "unlawful combatant", the state must prove that he contributed to the perpetration of hostile acts against the state, either directly or indirectly, in a manner that is likely to indicate his personal dangerousness. Naturally it is not possible to define such a contribution precisely and exhaustively, and the matter must be examined according to the circumstances of each case on its merits.

With respect to the second alternative  - a person who is "a member of a force carrying out hostilities against the State of Israel" - here too an interpretation that is consistent with the purpose of the Law and the constitutional principles and international humanitarian law discussed above is required: on the one hand it is insufficient to simply show some kind of tenuous connection with a terrorist organization in order to include the person within the cycle of hostilities in the broad meaning of this concept. On the other hand, in order to establish cause for the internment of a person who is a member of an active terrorist organization whose self-declared goal is to fight incessantly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that suffice to include him in the cycle of hostilities in its broad sense, such that his detention will be justified under the Law.

Thus we see that for the purpose of internment under the Law, the state must furnish administrative proof that the prisoner is an "unlawful combatant" with the meaning that we discussed, i.e. that the prisoner took a direct or indirect part that involved a contribution to the fighting  - a part that was neither negligible nor marginal in hostile acts against the State of Israel - or that the prisoner belonged to an organization that perpetrates hostile acts, in which case we should consider the prisoner's connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept.

It should be noted that proving the conditions of the definition of an "unlawful combatant" in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization. It should also be noted that only after the state has proved that the prisoner fulfils the conditions of the statutory definition of "unlawful combatant" can it have recourse to the probative presumption set out in s. 7 of the Law, according to which the release of the prisoner will harm state security as long as the contrary has not been proved. It is therefore clear that s. 7 of the Law does not negate the obligation of the state to prove the threat represented by the prisoner, which derives from the type of involvement in the relevant organization, as required in order to prove him to be an "unlawful combatant" under s. 2 of the Law. In view of this, the inevitable conclusion is that the argument that the Law does not include a requirement of an individual threat goes too far and should be rejected.

Proving someone to be an "unlawful combatant" under the Law - the need for clear and convincing administrative evidence

22.  Above, we discussed the interpretation of the definition of "unlawful combatant". According to the aforesaid interpretation, the state is required to prove that the prisoner took a substantial, direct or indirect part in hostile acts against the State of Israel, or that he belonged to an organization that perpetrates hostile acts:  all this, taking into consideration his connection and the extent of his contribution to the organization's cycle of hostilities. In these circumstances internment of a person may be necessary in order to remove him from the cycle of hostilities that prejudices the security of the citizens and residents of the State of Israel. The question that arises here is this: what evidence is required in order to convince the court that the prisoner satisfies the conditions of the definition of an "unlawful combatant" with the aforesaid meaning?

This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a cause for administrative detention (see Ajuri v. IDF Commander in West Bank [7], at p. 372, where this was the ruling with regard to the measure of assigned residence; also cf. per Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel [14], at p. 264; HCJ 554/81 Beransa v. Central Commander [15]). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. Bearing in mind the importance of the right to personal liberty and in view of the security purpose of the said Law, the provisions of ss. 2 and 3 of the Law should be interpreted as obligating the state to prove, with clear and convincing administrative evidence, that even if the prisoner did not take a substantial, direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, such that his administrative detention is justified in order to prevent his return to the aforesaid cycle of hostilities.

The significance of the requirement that there be clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current; this is necessary both to prove that the prisoner is an "unlawful combatant" under s. 2 of the Law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return below. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state; naturally we can learn of these threats from tangible evidence concerning the prisoner's acts in the past (see per President M. Shamgar in Beransa v. Central Commander [15], at pp. 249-250; HCJ 11026/05 A v. IDF Commander [16], at para. 5). Nevertheless, for the purposes of long-term internment under the Internment of Unlawful Combatants Law, satisfactory administrative evidence is required, and a single piece of evidence about an isolated act carried out in the distant past is insufficient.

23. It follows that for the purposes of internment under the Internment of Unlawful Combatants Law, the state is required to provide clear and convincing evidence that even if the prisoner did not take a substantial direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and contributed to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, for to prove that someone is a member of a terrorist organization is not like proving that someone is a member of a regular army, due to the manner in which terrorist organizations work and how people join their ranks. In Public Committee against Torture in Israel v. Government of Israel [4], the court held that unlike lawful combatants, unlawful combatants do not as a rule bear any clear and unambiguous signs that they belong to a terrorist organization (see ibid. [4], at para. 24). Therefore, the task of proving that a person belongs to an organization as aforesaid is not always an easy one. Nevertheless, the state is required to furnish sufficient administrative evidence to prove the nature of the prisoner's connection to the terrorist organization, and the degree or nature of his contribution to the broad cycle of combat or hostile acts carried out by the organization.

It should also be noted that in its pleadings before us, the state contended that the power of internment prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a situation of ongoing belligerence in territory that is not subject to the full control of the State of Israel, where in the course of the hostilities a relatively large number of unlawful combatants may fall into the hands of the security forces and it is necessary to prevent them returning to the cycle of hostilities against Israel. The special circumstances that exist in situations of this kind require a different course of action from that which is possible within the territory of the state or in an area subject to belligerent occupation. In any case, it must be assumed that the said reality may pose additional difficulties in assembling evidence as to whether those persons detained by the state on the battle-field belong to a terrorist organization and how great a threat they represent.

The probative presumptions in ss. 7 and 8 of the Law

24. As we have said, s. 7 of the Law establishes a presumption whereby a person who satisfies the conditions of the definition of "unlawful combatant" shall be regarded as someone whose release will harm the security of the state as long as the hostile acts against the State of Israel have not ceased. This is a rebuttable presumption, and the burden of rebutting it rests on the prisoner. We will emphasize what we said above, that the presumption in the said s. 7 is likely to be relevant only after the state has proved that the prisoner satisfies the conditions of the definition of "unlawful combatant". In such circumstances it is presumed that the release of the prisoner will harm state security as required by s. 3(a) of the Law.

As noted above, one of the appellants' main claims in this court was that the aforesaid presumption obviates the need to prove an individual threat from the prisoner, and that this is inconsistent with constitutional principles and international humanitarian law. The respondent countered this argument but went on to declare before us that as a rule, the state strives to present a broad and detailed evidentiary basis with regard to the threat presented by prisoners, and it has done so to date in relation to all prisoners under the Law, including in the appellants' case. The meaning of this assertion is that in practice, the state refrains from relying on the probative presumption in s. 7 of the Law and it proves the individual threat presented by prisoners on an individual basis, without resorting to the said presumption. It should be noted that this practice of the state is consistent with our finding that proving fulfillment of the conditions of the definition of "unlawful combatant" in s. 2 of the Law involves proving the individual threat that arises from the type of involvement in an organization as explained above.

In any case, since the state has refrained until now from invoking the presumption in s. 7 of the Law, the questions of the extent to which the said presumption reduces the requirement of proving the individual threat for the purpose of internment under the Law, and whether this is an excessive violation of the constitutional right to liberty and of the principles of international humanitarian law, do not arise. We can therefore leave these questions undecided, for as long as the state produces prima facie evidence of the individual threat presented by the prisoner and does not rely on the presumption under discussion, the question of the effect of the presumption on proving an individual threat remains theoretical. It will be noted that should the state choose to invoke the presumption in s. 7 of the Law in the future rather than proving the threat to the required degree, it will be possible to bring the aforesaid questions before the court, since it will be necessary to resolve them concretely rather than theoretically (see CrimA 3660/03 Abeid v. State of Israel [17]; HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [18]; HCJ 6055/95 Tzemach v. Minister of Defence [19], at p. 250 {641}; HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior [20], at para. 10; CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [21]).

25. Regarding the probative presumption in s. 8 of the Law, this section states as follows:

'Determination regarding hostile acts

8. A determination of the Minister of Defence, by a certificate under his hand, that a particular force is perpetrating hostile acts against the State of Israel or that hostile acts of such force against the State of Israel have ceased or have not yet ceased, shall serve as proof in any legal proceedings, unless proved otherwise.

The appellants argued before us that the said probative presumption transfers the burden of proof to the prisoner in respect of a matter which he will never be able to refute, since it is subject to the discretion of the Minister of Defence. The state countered that in all the proceedings pursuant to the Law it has refrained from relying solely on the determination of the Minister of Defence, and it has presented the court and counsel for the prisoners with an updated and detailed opinion concerning the relevant organization to which the prisoner belongs. This was done in the case of the appellants too, who allegedly belong to the Hezbollah organization. In view of this, we are not required to decide on the fundamental questions raised by the appellants regarding the said s. 8.  In any case, it should be stated that in the situation prevailing in our region, in which the organizations that operate against the security of the State of Israel are well known to the military and security services, it should not be assumed that it is difficult to prove the existence and nature of the activity of hostile forces by means of a specific and updated opinion, in order to provide support for the determination of the Minister of Defence, as stated in s. 8 of the Law.

The Constitutional Examination

26.  Up to this point we have dealt with the interpretation of the statutory definition of "unlawful combatant" and the conditions required for proving the existence of a cause for internment under the Law. This interpretation takes into account the language and purpose of the Internment of Unlawful Combatants Law, and it is compatible with the presumption of constitutionality and with the principles of international humanitarian law to which the purpose clause of the Law expressly refers.

Now that we have considered the scope of the Law's application and the nature of the power of internment by virtue thereof, we will proceed to the arguments of the parties concerning the constitutionality of the arrangements prescribed in its framework. These arguments were raised in the District Court and in this court in the course of the hearing on the appellants' internment, in the framework of an indirect attack on the said Law.

Violation of the constitutional right to personal liberty

27.  S. 5 of Basic Law: Human Dignity and Liberty provides as follows:

'Personal liberty

5.  There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

There is no dispute between the parties before us that the Internment of Unlawful Combatants Law violates the constitutional right to personal liberty entrenched in the aforesaid s. 5. This is a significant and serious violation, in that the Law allows the use of the extreme measure of administrative detention, which involves depriving a person of his personal liberty. It should be clarified that the Internment of Unlawful Combatants Law was admittedly intended to apply to a foreign entity belonging to a terrorist organization that operates against the state security (see para. 11 above). In Israel, however, the internment of unlawful combatants is carried out by the government authorities, who are bound in every case to respect the rights anchored in the Basic Law (see ss. 1 and 11 of the Basic Law). Accordingly, the violation inherent in the arrangements of the Internment of Unlawful Combatants Law should be examined in keeping with the criteria in the Basic Law.

Examining the violation of the constitutional right from the perspective of the limitation clause

28.  No one disputes that the right to personal liberty is a constitutional right with a central role in our legal system, lying at the heart of the values of the State of Israel as a Jewish and democratic state (see Marab v. IDF Commander in Judaea and Samaria [8], at para. 20). It has been held in our case law that "personal liberty is a constitutional right of the first degree, and from a practical viewpoint it is also a condition for realizing other basic rights" (Tzemach v. Minister of Defence [16], at p. 251; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [22], at p. 81 {513}; CrimA 4596/05 Rosenstein v. State of Israel [23], at para. 53; CrimA 4424/98 Silgado v. State of Israel [24], at pp. 539-540). Nevertheless, like all protected human rights the right to personal liberty is not absolute, and a violation of the right is sometimes necessary in order to protect essential public interests. The balancing formula in this context appears in the limitation clause in s. 8 of the Basic Law, which states:

'Violation of Rights

8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein. '

The question confronting us is whether the violation of the right to personal liberty engendered by the Internment of Unlawful Combatants Law complies with the conditions of the limitation clause. The arguments of the parties before us focused on the requirements of proper purpose and proportionality, and these will be the focus of our deliberations as well.

29. At the outset, and before we examine the provisions of the Law from the perspective of the limitation clause, we should mention that the court will not hasten to intervene and set aside a statutory provision enacted by the legislature. The court is bound to uphold the law as a manifestation of the will of the people (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [25], at pp. 552-553; HCJ 4769/95 Menahem v. Minister of Transport [26], at pp. 263-264; HCJ 3434/96 Hoffnung v. Knesset Speaker [27], at pp. 66-67). Thus the principle of the separation of powers finds expression: the legislative authority determines the measures that should be adopted in order to achieve public goals, whereas the judiciary examines whether these measures violate basic rights in contravention of the conditions set for this purpose in the Basic Law. It is the legislature that determines national policy and formulates it in statute, whereas the court scrutinizes the constitutionality of the legislation to reveal the extent to which it violates constitutional human rights (see per President A. Barak in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 78). It has therefore been held in the case law of this court that when examining the legislation of the Knesset from the perspective of the limitation clause, the court will act "with judicial restraint, caution and moderation" (Menahem v. Minister of Transport [26], at p. 263). The court will not refrain from constitutional scrutiny of legislation, but it will act with caution and exercise its constitutional scrutiny in order to protect human rights within the constraints of the limitation clause, while refraining from reformulating the policy that the legislature saw fit to adopt. Thus the delicate balance between majority rule and the principle of the separation of powers on the one hand, and the protection of the basic values of the legal system and human rights on the other, will be preserved.

The requirement of a proper purpose

30. According to the limitation clause, a statute that violates a constitutional right must have a proper purpose. It has been held in our case law that a legislative purpose is proper if it is designed to protect human rights, including by determining a reasonable and fair balance between the rights of individuals with conflicting interests, or if it serves an essential public purpose, an urgent social need or an important social concern whose purpose is to provide an infrastructure for coexistence and a social framework that seeks to protect and promote human rights (see ibid. [26], at p. 264; HCJ 6893/05 Levy v. Government of Israel [28], at pp. 889-890; HCJ 5016/96 Horev v. Minister of Transport [29], at pp. 52-53, {206}). It has also been held that not every purpose justifies a violation of constitutional basic rights, and that the essence of the violated right and the magnitude of the violation are likely to have ramifications for the purpose that is required to justify the violation.

In our remarks above we explained that the Internment of Unlawful Combatants Law, according to its wording and its legislative history, was intended to prevent persons who threaten the security of the state due to their activity or their membership in terrorist organizations that carry out hostile acts against the State of Israel from returning to the cycle of hostilities (see para. 6 above). This legislative purpose is a proper one. Protecting state security is an urgent and even essential public need in the harsh reality of unremitting, murderous terrorism that harms innocent people indiscriminately. It is difficult to exaggerate the security importance of preventing members of terrorist organizations from returning to the cycle of hostilities against the State of Israel in a period of relentless terrorist activity that threatens the lives of the citizens and residents of the State of Israel. In view of this, the purpose of the Law under discussion may well justify a significant and even serious violation of human rights, including the right to personal liberty. Thus was discussed by President A. Barak when he said that -

'There is no alternative - in a freedom and security seeking democracy - to striking a balance between liberty and dignity on the one hand and security on the other. Human rights should not become a tool for depriving the public and the state of security. A balance - a delicate and difficult balance - is required between the liberty and dignity of the individual and state and public security' (A v. Minister of Defence [1], at p.741).

 (See also Ajuri v. IDF Commander in West Bank [7], at p. 383; per Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [30],  at pp. 76-77, {para.6 at pp. 197-198}; EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [31], at p. 310 {160}).

The purpose of the Internment of Unlawful Combatants Law is therefore a proper one. But this is not enough. Within the framework of constitutional scrutiny, we are required to proceed to examine whether the violation of the right to personal liberty does not exceed what is necessary for realizing the purpose of the Law. We shall now examine this question.

The requirement that the measure violating a human right is not excessive

31. The main issue that arises with respect to the constitutionality of the Law concerns the proportionality of the arrangements it prescribes. As a rule, it is customary to identify three subtests that constitute fundamental criteria for determining the proportionality of a statutory act that violates a constitutional human right: the first is the rational connection test, whereby the legislative measure violating the constitutional right and the purpose that the Law is intended to realize must be compatible; the second is the least harmful measure test, which requires that the legislation violate the constitutional right to the smallest degree possible in order to achieve the purpose of the Law; and the third is the test of proportionality in the narrow sense, according to which the violation of the constitutional right must be commensurate with the social benefit it bestows (see Menahem v. Minister of Transport [26], at p. 279; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at paras. 65-75; Beit Sourik Village Council v. Government of Israel [6], at pp. 839-840).

It has been held in the case law of this court that the test of proportionality, with its three subtests, is not a precise test since by its very nature it involves assessment and evaluation. The subtests sometimes overlap and each of them allows the legislature a margin of discretion. There may be circumstances in which the choice of an alternative measure that violates the constitutional right slightly less results in a significant reduction in the realization of the purpose or the benefit derived from it; it would not be right therefore to obligate the legislature to adopt the aforesaid measure. Consequently this court has accorded recognition to "constitutional room for maneuver" which is also called the "zone of proportionality". The bounds of the constitutional room for maneuver are determined by the court in each case on its merits and according to its circumstances, bearing in mind the nature of the right that is being violated and the extent of the violation as opposed to the nature and substance of the competing rights or interests. This court will not substitute its own discretion for the criteria chosen by the legislature and will refrain from intervention as long as the measure chosen by the legislature falls within the zone of proportionality. The court will only intervene when the chosen measure significantly departs from the bounds of the constitutional room for maneuver and is clearly disproportionate (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [32], at p. 438; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [33]; AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [34], at p. 815; Gaza Coast Regional Council v. Knesset [25], at pp. 550-551).

In the circumstances of the case before us, the violation of the constitutional right to personal liberty is significant and even severe in its extent. Nevertheless, as we said above, the legislative purpose of removing "unlawful combatants" from the cycle of hostilities in order to protect state security is essential in view of the reality of murderous terrorism that threatens the lives of the residents and citizens of the State of Israel. In these circumstances, I think that the existence of relatively wide room for legislative maneuver should be recognized, to allow the selection of the suitable measure for realizing the purpose of the Law.

The First Subtest: A Rational Connection Between the Measure and the Purpose

32.  The measure chosen by the legislature in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention. As we explained in para. 21 above, for the purpose of internment under the Law the state must provide clear and convincing proof that the prisoner is an "unlawful combatant" within the meaning that we discussed. The state is therefore required to prove the personal threat presented by the prisoner, deriving from his particular form of involvement in the organization. Administrative detention constitutes a suitable means of averting the security threat presented by the prisoner, in that it prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel and thereby serves the purpose of the Law. Therefore the first subtest of proportionality - the rational connection test - is satisfied.

The main question concerning the proportionality of the Law under discussion concerns the second subtest, i.e. the question of whether there exist alternative measures that involve a lesser violation of the constitutional right. In examining this question, we should first consider the appellants' argument that there are more proportionate measures for realizing the purpose of the Internment of Unlawful Combatants Law. Next we should consider the specific arrangements prescribed in the Law and examine whether they exceed the zone of proportionality. Finally we should examine the Law in its entirety and examine whether the combination of arrangements that were prescribed in the Law fulfils the test of proportionality in the narrow sense, i.e. whether the violation of the right to personal liberty is reasonably commensurate with the public benefit that arises from it in realizing the legislative purpose.

The argument that there are alternative measures to detention under the Law

33.  The appellants' main argument concerning proportionality was that alternative measures to administrative detention exist by virtue of the Law, involving a lesser violation of the right to liberty. In this context, the appellants raised two main arguments: first, it was argued that for the purpose of realizing the legislative purpose it is not necessary to employ the measure of administrative detention, and the appellants ought to be recognized as prisoners of war; alternatively, recourse should be had to the measure of trying the appellants on criminal charges. Secondly, it was argued that even if administrative detention is necessary in the appellants' case, this should be carried out under the Emergency Powers (Detentions) Law, 5739-1979, for according to their argument, the violation that it involves is more proportionate than that of the Internment of Unlawful Combatants Law.

The first argument - that the appellants should be declared prisoners of war - must be rejected. In HCJ 2967/00 Arad v. Knesset [35], which considered the case of Lebanese prisoners, a similar argument to the one raised in the present appellants' case was rejected:

'We agree with the position of Mr Nitzan that the Lebanese prisoners should not be regarded as prisoners of war. It is sufficient that they do not satisfy the provisions of art. 4(2)(d) of the Third Geneva Convention, which provides that one of the conditions that must be satisfied in order to comply with the definition of "prisoners of war" is "that of conducting their operations in accordance with the laws and customs of war." The organizations to which the Lebanese prisoners belonged are terrorist organizations, which operate contrary to the laws and customs of war. Thus, for example, these organizations deliberately attack civilians and shoot from the midst of the civilian population, which they use as a shield. All of these are operations that are contrary to international law. Indeed, Israel's consistent position over the years was not to regard the various organizations such as Hezbollah as organizations to which the Third Geneva Convention applies. We have found no reason to intervene in this position' (ibid. [35], at p. 191).

 (See also CrimApp 8780/06 Sarur v. State of Israel [36]; HCJ 403/81 Jabar v. Military Commander [37]; and also HCJ 102/82 Tzemel v. Minister of Defence [38], at pp. 370-371).

Similar to what was said in Arad v. Knesset [35], in the circumstances of the case before us, too, the appellants should not be accorded prisoner of war status, since they do not satisfy the conditions of art. 4 of the Third Geneva Convention, and primarily, the condition concerning the observance of the laws of war.

The appellants' argument that a more proportionate measure would be to try the prisoners on criminal charges should also be rejected, in view of the fact that trying a person on criminal charges is different in essence and purpose from the measure of administrative detention. Putting a person on trial is intended to punish him for acts committed in the past, and it is dependent upon the existence of evidence that can be brought before a court in order to prove guilt beyond a reasonable doubt. Administrative detention, on the other hand, was not intended to punish but to prevent activity that is prohibited by law and endangers the security of the state. The quality of evidence that is required for administrative detention is different from that required for a criminal trial. Moreover, as a rule recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are impossible, due to the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when a criminal trial does not provide a satisfactory solution to averting the threat posed to the security of the state in circumstances in which, after serving his sentence, the person is likely to revert to being a security risk (see, inter alia, ADA 4794/05 Ufan v. Minister of Defence [39]; ADA 7/94 Ben-Yosef v. State of Israel [40]; ADA 8788/03 Federman v. Minister of Defence [41], at pp. 185-189; Fahima v. State of Israel [14], at pp. 263-264). In view of all the above, it cannot be said that a criminal trial constitutes an alternative measure for realizing the purpose of the Internment of Unlawful Combatants Law.

34.  As we have said, the appellants' alternative claim before us was that even if it is necessary to place them in administrative detention, this should be done pursuant to the Emergency Powers (Detentions) Law. According to this argument, the Emergency Powers (Detentions) Law violates the right to personal liberty to a lesser degree than the provisions of the Internment of Unlawful Combatants Law. Thus, for example, it is argued that the Emergency Powers (Detentions) Law requires an individual threat as a cause for detention, without introducing presumptions that transfer the burden of proof to the prisoner, as provided in the Internment of Unlawful Combatants Law. Moreover, the Emergency Powers (Detentions) Law requires a judicial review to be conducted within forty-eight hours of the time of detention, and a periodic review every three months, whereas the Internment of Unlawful Combatants Law allows a prisoner to be brought before a judge as much as fourteen days after the time he is detained, and it requires a periodic review only once every half year; under the Emergency Powers (Detentions) Law,  the power of detention is conditional upon the existence of a state of emergency in the State of Israel, whereas internment under the Internment of Unlawful Combatants Law does not set such a condition and it is even unlimited in time, apart from the stipulation that the internment will end by the time that the hostilities against the State of Israel have ceased. To this it should be added that detention under the Emergency Powers (Detentions) Law is effected by an order of the Minister of Defence, whereas internment under the Internment of Unlawful Combatants is effected by an order of the Chief of Staff, who is authorised to delegate his authority to an officer with the rank of major-general. Taking into consideration all the above, the appellants' argument before us is that detention under the Emergency Powers (Detentions) Law constitutes a more proportionate alternative than administrative detention under the Internment of Unlawful Combatants Law.

35.  Prima facie the appellants are correct in their argument that in certain respects the arrangements prescribed in the Emergency Powers (Detentions) Law violate the right to personal liberty to a lesser degree than the Internment of Unlawful Combatants Law. However, we accept the state's argument in this context that the Internment of Unlawful Combatants Law is intended for a different purpose than that of the Emergency Powers (Detentions) Law. In view of the different purposes, the two laws contain different arrangements, such that the Emergency Powers (Detentions) Law does not constitute an alternative measure for achieving the purpose of the Law under discussion in this case. Let us clarify our position.

The Emergency Powers (Detentions) Law applies in a time of emergency and in general, its purpose is to prevent threats to state security arising from internal entities (i.e., citizens and residents of the state). Accordingly, the Law prescribes the power of administrative detention that is usually invoked with regard to isolated individuals who threaten state security and whose detention is intended to last for relatively short periods of time, apart from exceptional cases. On the other hand, as we clarified in para. 11 above, the Internment of Unlawful Combatants Law is intended to apply to foreign entities who operate within the framework of terrorist organizations against the security of the state. The Law was intended to apply at a time of organized and persistent hostile acts against Israel on the part of terrorist organizations. The purpose of the Law is to prevent persons who belong to these organizations or who take part in hostile acts under their banner from returning to the cycle of hostilities, as long as the hostilities against the State of Israel continue. In order to achieve the aforesaid purpose, the Internment of Unlawful Combatants Law contains arrangements that are different from those in the Emergency Powers (Detentions) Law (we will discuss the question of the proportionality of these arrangements below). Moreover, according to the state, the power of detention prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a persistent state of war in a territory that is not a part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting. The argument is that these special circumstances justify recourse to measures that are different from those usually employed.

Thus we see that even though the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law prescribe a power of administrative detention whose purpose is to prevent a threat to state security, the specific purposes of the aforesaid laws are different and therefore the one cannot constitute an alternative measure for achieving the purpose of the other. In the words of the trial court: "We are dealing with a horizontal plane on which there are two acts of legislation, one next to the other. Each of the two was intended for a different purpose and therefore, in circumstances such as our case, they are not alternatives to one another" (p. 53 of the decision of the District Court of 19 July 2006). It should be clarified that in appropriate circumstances, the Emergency Powers (Detentions) Law could well be used to detain foreigners who are not residents or citizens of the State of Israel. Despite this, the premise is that the specific purposes of the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law are different, and therefore it cannot be determined in a sweeping manner that detention under the Emergency Powers (Detentions) Law constitutes a more appropriate and proportionate alternative to detention under the Internment of Unlawful Combatants Law.

36.  In concluding these remarks it will be mentioned that the appellants, who are inhabitants of the Gaza Strip, were first detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out under the security legislation that was in force in the Gaza Strip. A change occurred in September 2005, when Israeli military rule in the Gaza Strip ended and the territory ceased to be subject to belligerent occupation (see para. 11 above). One of the ancillary consequences of the end of the Israeli military rule in the Gaza Strip was the repeal of the security legislation that was in force there. Consequently, the Chief of Staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law.

In view of the nullification of the security legislation in the Gaza Strip, no question arises in relation to inhabitants of that region as to whether administrative detention by virtue of security legislation may constitute a suitable and more proportionate measure than internment under the Internment of Unlawful Combatants Law. Nonetheless, I think it noteworthy that the aforesaid question may arise with regard to inhabitants of the territories that are under the belligerent occupation of the State of Israel (Judaea and Samaria). As emerges from the abovesaid in para. 11, prima facie I tend to the opinion that both under the international humanitarian law that governs the matter (art. 78 of the Fourth Geneva Convention) and according to the test of proportionality, administrative detention of inhabitants of Judaea and Samaria should be carried out by virtue of the current security legislation that is in force in the territories, and not by virtue of the Internment of Unlawful Combatants Law in Israel. This issue does not, however, arise in the circumstances of the case before us and therefore I think it right to leave it for future consideration.

Proportionality of the specific arrangements prescribed in the Law

37.  In view of all of the reasons elucidated above, we have reached the conclusion that the measures identified by the appellants in their pleadings cannot constitute alternative measures to administrative detention by virtue of the Law under discussion. The appellants further argued that the specific arrangements prescribed in the Internment of Unlawful Combatants Law violate the right to personal liberty excessively, and more proportionate arrangements that violate personal liberty to a lesser degree could have been set. Let us therefore proceed to examine this argument with regard to the specific arrangements prescribed in the Law.

(1)        Conferring the power of detention on military personnel

38.       S. 3(a) of the Law, cited in para. 15 above, provides that an internment order by virtue of the Law will be issued by the Chief of Staff "under his hand" and will include the grounds for the internment "without prejudicing state security requirement." S. 11 of the Law goes on to provide that "the Chief of Staff may delegate his powers under this Law to any officer of the rank of major-general that he may determine." According to the appellants, conferring the power of detention by virtue of the Law on the Chief of Staff, who may delegate it to an officer of the rank of major-general, is an excessive violation of the prisoners' right to personal liberty. In this context, the appellants emphasized that the Emergency Powers (Detentions) Law confers the power of administrative detention on the Minister of Defence only.

In the circumstances of the case, we have come to the conclusion that the state is correct in its argument that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general falls within the zone of proportionality and we should not intervene. First, as we said above, the specific purposes of the Internment of Unlawful Combatants Law and the Emergency Powers (Detentions) Law are different, and there is therefore a difference in the arrangements prescribed in the two Laws. Since the Law under consideration before us was intended to apply, inter alia, in a situation of combat and prolonged military activity against terrorist organizations in a territory that is not subject to the total control of the State of Israel, there is logic in establishing an arrangement that confers the power of internment on military personnel of the highest rank. Secondly, it should be made clear that the provisions of international law do not preclude the power of detention of the military authority responsible for the security of a territory in which there are protected civilians. This may support the conclusion that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general does not, in itself, violate the right to personal liberty disproportionately.

(2)        The prisoner's right to a hearing after an internment order is issued

39.  Ss. 3(b) and 3(c) of the Law provide as follows:

Internment of unlawful combatant

3.   (a) ...

(b) An internment order may be granted in the absence of the person held by the state authorities.

 (c) An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff; the submissions of the prisoner shall be recorded by the officer and shall be brought before the Chief of General Staff; if the Chief of General Staff finds, after reviewing the submissions of the prisoner, that the conditions prescribed in subsection (a) have not been fulfilled, he shall quash the internment order.

According to s. 3(b) above, an internment order may be granted by the Chief of Staff (or a major-general appointed by him) without the prisoner being present. S. 3(c) of the Law goes on to provide that the order shall be brought to the attention of the prisoner "at the earliest possible date" and that he shall be given a hearing before an army officer of at least the rank of lieutenant-colonel, in order to allow him to put his submissions; the prisoner's submissions shall be recorded by the officer and brought before the Chief of Staff (or the major-general acting for him). According to the Law, if after reviewing the prisoner's arguments the Chief of Staff (or the major-general) is persuaded that the conditions for detention under the Law are not fulfilled, the internment order shall be quashed.

The appellants' argument in this context was that this arrangement violates the right to personal liberty excessively in view of the fact that the prisoner may put his submissions only after the event, i.e., after the internment order has been issued, and only before an officer of the rank of lieutenant-colonel, who will pass the submissions on to the Chief of Staff (or a major-general), in order that they reconsider their position. According to the appellants, it is the person who issues the order - the Chief of Staff or the major-general - who should hear the prisoner's arguments, even before the order is issued. These arguments should be rejected, for several reasons: first, it is established case law that the person who makes the decision does not need to conduct the hearing personally, and that it is also permissible to conduct the hearing before someone who has been appointed for this purpose by the person making the decision, provided that the person making the decision - in our case the Chief of Staff or the major-general acting on his behalf - will have before him all of the arguments and facts that were raised at the hearing (see HCJ 5445/93 Ramla Municipality v. Minister of the Interior [42], at p. 403; HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [43], at pp. 81-82). Secondly, from a practical viewpoint, establishing a duty to conduct hearings in advance, in the personal presence of the Chief of Staff or the major-general in times of combat and in circumstances in which there are liable to be many detentions in the combat zone as well, may present  significant logistical problems. Moreover, conducting a hearing in the manner proposed by the appellants is contrary to the purpose of the Law, which is to allow the immediate removal of the "unlawful combatants" from the cycle of hostilities in an effective manner. It should be emphasized that the hearing under s. 3(c) of the Law is a preliminary process whose main purpose is to prevent mistakes of identity. As will be explained below, in addition to the preliminary hearing, the Law requires that a judicial review take place before a District Court judge no later than fourteen days from the date of issue of the internment order, thereby lessening the violation claimed by the appellants. In view of all of the above, it cannot be said that the arrangement prescribed in the Law with respect to the hearing falls outside the zone of proportionality.

 (3)      Judicial review of internmentunder the Law

40.  S. 5 of the Law, entitled "Judicial Review", prescribes the following arrangement in subsecs. (a) - (d):

5.  (a) A prisoner shall be brought before a judge of the District Court no later than fourteen days after the date of granting the internment order; where the judge of the District Court finds that the conditions prescribed in s. 3(a) have not been fulfilled he shall quash the internment order.

(b) Where the prisoner is not brought before the District Court and where the hearing has not commenced before it within fourteen days of the date of granting the internment order, the prisoner shall be released unless there exists another ground for his detention under provisions of any law.

            (c)  Once every six months from the date of issue of an order under s. 3(a) the prisoner shall be brought before a judge of the District Court; where the Court finds that his release will not harm State security or that there are special grounds justifying his release, it shall quash the internment order.

(d) A decision of the District Court under this section is subject to appeal within thirty days to the Supreme Court, a single judge of which shall hear the appeal with; the Supreme Court shall have all the powers vested in the District Court under this Law.

The appellants argued before us that the judicial review process prescribed in s. 5 violates the right to personal liberty excessively, for two main reasons: first, under s. 5(a) of the Law, the prisoner should be brought before a District Court judge no later than fourteen days from the date of his detention. According to the appellants, this is a long period of time that constitutes an excessive violation of the right to personal liberty and of the prisoner's right of access to the courts. In this context the appellants argued that in view of the constitutional status of the right to personal liberty and in accordance with the norms applicable in international law, the legislature should have determined that the prisoner be brought to a judicial review "without delay." Secondly, it was argued that the period of time set in s. 5(c) of the Law for conducting periodic judicial review of the internment - every six months - is too long as well as disproportionate. By way of comparison, the appellants pointed out that the Emergency Powers (Detentions) Law prescribes in this regard a period of time that is shorter by half - only three months. In reply, the state argued that in view of the purpose of the Law, the periods of time set in s. 5 are proportionate and they are consistent with the provisions of international law.

41. S. 5 of the Law is based on the premise that judicial review constitutes an integral part of the administrative detention process. In this context it has been held in the past that -

'Judicial intervention in the matter of detention orders is essential. Judicial intervention is a safeguard against arbitrariness; it is required by the principle of the rule of law…. It ensures that the delicate balance between the liberty of the individual and the security of the public - a balance that lies at the heart of the laws of detention - will be maintained' (per President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at page 368).

The main thrust of the dispute regarding the constitutionality of s. 5 of the Law concerns the proportionality of the periods of time specified therein.

With respect to the periods of time between the internment of the prisoner and the initial judicial review of the internment order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and of discretion whose price is likely to be a person's loss of liberty without just cause, the administrative prisoner should be brought before a judge "as soon as possible" in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [44], at pp. 819-820). It should be noted that this case law is consistent with the arrangements prevailing in international law. International law does not specify the number of days during which it is permitted to detain a person without judicial intervention; rather, it lays down a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the decision on internment should be brought before a judge or another person with judicial authority "promptly" (see art. 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature; see also the references cited in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 369-370). A similar principle was established in arts. 43 and 78 of the Fourth Geneva Convention whereby the judicial (or administrative) review of a detention decision should be made "as soon as possible" (as stated in art. 43 of the Convention) or "with the least possible delay" (as stated in art. 78 of the Convention). Naturally the question as to what is the earliest possible date for bringing a prisoner before a judge depends upon the circumstances of the case.

In the present case, the Internment of Unlawful Combatants Law provides that the date for conducting the initial judicial review is "no later than fourteen days from the date of granting the internment order." The question that arises in this context is whether the said period of time violates the right to personal liberty excessively. The answer to this question lies in the purpose of the Law and in the special circumstances of the particular internment, as well as in the interpretation of the aforesaid provision of the Law. As we have said, the Internment of Unlawful Combatants Law applies to foreign entities who belong to terrorist organizations and who are engaged in ongoing hostilities against the State of Israel. As noted, the Law was intended to apply, inter alia, in circumstances in which a state of belligerence exists in territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not agree that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the zone of proportionality in such a way as to justify our intervention by shortening the maximum period prescribed in the Law. At the same time, it should be emphasized that the period of time prescribed in the Law is a maximum period and it does not exempt the state from making an effort to conduct a preliminary judicial review of the prisoner's case as soon as possible in view of all the circumstances. In other words, although we find no cause to intervene in the proportionality of the maximum period prescribed in the Law, the power of detention in each specific case should be exercised proportionately, and fourteen whole days should not be allowed to elapse before conducting an initial judicial review where it is possible to conduct a judicial review earlier (cf. ADA 334/04 Darkua v. Minister of the Interior [45], at p. 371, in which it was held that even though under the Entry into Israel Law, 5712-1952, a person taken into custody must be brought before the Custody Review Tribunal no later than fourteen days from the date on which he was taken into custody, the whole of the aforesaid fourteen days should not be used when there is no need to do so).

In concluding these remarks it should be noted that s. 3(c) of the Law, cited above, provides that "An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff" [emphasis added - D.B.]. Thus we see that although s. 5(a) of the Law prescribes a maximum period of fourteen days for an initial judicial review, s. 3(c) of the Law imposes an obligation to conduct a hearing for the prisoner before a military officer at the earliest possible time after the order is issued. The aforesaid hearing is certainly not a substitute for a review before a judge of the District Court, which is an independent and objective judicial instance, but the very fact of conducting an early hearing as soon as possible after the issuing of the order may somewhat reduce the concern over an erroneous or ostensibly unjustified detention, which will lead to an excessive violation of the right to liberty.

42.  As stated, the appellants' second argument concerned the frequency of the periodic judicial review of internment under the Law. According to s. 5(c) of the Law, the prisoner must be brought before a District Court judge once every six months from the date of issuing the order; if the court finds that the release of the prisoner will not harm state security or that there are special reasons that justify his release, the court will quash the internment order.

The appellants' argument before us was that a frequency of once every six months is insufficient and it disproportionately violates the right to personal liberty. Regarding this argument, we should point out that the periodic review of the necessity of continuing the administrative detention once every six months is consistent with the requirements of international humanitarian Law. Thus, art. 43 of the Fourth Geneva Convention provides:

'Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.'

It emerges from art. 43 that periodic review of a detention order "at least twice yearly" is consistent with the requirements of international humanitarian law, in a manner that supports the proportionality of the arrangement prescribed in s. 5(c) of the Law. Moreover, whereas art. 43 of the Fourth Geneva Convention considers an administrative review that is carried out by an administrative body to be sufficient, the Internment of Unlawful Combatants Law provides that it is a District Court judge who must conduct a judicial review of the internment orders under the Law, and his decision may be appealed to the Supreme Court which will hear the appeal with a single judge (s. 5(d) of the Law). In view of all this, it cannot be said that the arrangement prescribed in the Law with regard to the nature and frequency of the judicial review violates the constitutional right to personal liberty excessively.

 (4) Departure from the rules of evidence and reliance upon privileged evidence within the framework of proceedings under the Law

43.  S. 5(e) of the Law provides as follows:

'Judicial review 

  5. ...

(e) It shall be permissible to depart from the laws of evidence in proceedings under this Law, for reasons to be recorded; the court may admit evidence, even in the absence of the prisoner or his legal representative, or not disclose such evidence to the aforesaid if, after having reviewed the evidence or heard the submissions, even in the absence of the prisoner or his legal representative,  it is convinced that disclosure of the evidence to the prisoner or his legal representative is likely to harm state security or public security; this provision shall not derogate from any right not to give evidence under Chapter 3 of the Evidence Ordinance [New Version], 5731-1971.

The appellants' argument before us was that the arrangement prescribed in the aforesaid s. 5(e) disproportionately violates the right to personal liberty, since it allows the judicial review of an internment order by virtue of the Law to depart from the laws of evidence and it allows evidence to be heard ex parte in the absence of the prisoner and his legal representative and without it being disclosed to them.

With respect to this argument it should be noted that by their very nature, administrative detention proceedings are based on administrative evidence concerning security matters. The nature of administrative detention for security reasons requires recourse to evidence that does not satisfy the admissibility tests of the laws of evidence and that therefore may not be submitted in a regular criminal trial. Obviously the confidentiality of the sources of the information is important, and it is therefore often not possible to disclose all the intelligence material that is used to prove the grounds for detention. Reliance on inadmissible administrative evidence and on privileged material for reasons of state security lies at the heart of administrative detention, for if there were sufficient admissible evidence that could be shown to the prisoner and brought before the court, as a rule the measure of criminal indictment should be chosen (see Federman v. Minister of Defence [41], at p. 185-186). There is no doubt that a proceeding that is held ex parte in order to present privileged evidence to the court has many drawbacks. But the security position in which we find ourselves in view of the persistent hostilities against the security of the State of Israel requires recourse to tools of this kind when granting a detention order under the Internment of Unlawful Combatants Law, the Emergency Powers (Detentions) Law or the security legislation in areas under military control.

It should be emphasized that in view of the problems inherent in relying upon administrative evidence for the purpose of detention, over the years the judiciary has developed a tool for control and scrutiny of intelligence material, to the extent possible in a proceeding of the kind that takes place in judicial review of administrative detention. In the framework of these proceedings the judge is required to question the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In this regard the following was held in HCJ 4400/98 Braham v. Justice Colonel Shefi [46], at p. 346, per Justice T. Or:

'The basic right of every human being as such to liberty is not an empty slogan. The protection of this basic value requires that we imbue the process of judicial review of administrative detention with meaningful content. In this framework, I am of the opinion that the professional judge can and should consider not only the question of whether, prima facie, the competent authority was authorized to decide what it decided on the basis of the material that was before it; the judge should also consider the question of the credibility of the material that was submitted as a part of his assessment of the weight of the material. Indeed, that fact that certain "material" is valid administrative evidence does not exempt the judge from examining the degree of its credibility against the background of the other evidence and all the circumstances of the case. In this context, the "administrative evidence" label does not exempt the judge from having to demand and receive explanations from those authorities that are capable of providing them. To say otherwise would mean weakening considerably the process of judicial review, and allowing the deprivation of liberty for prolonged periods on the basis of flimsy and insufficient material. Such an outcome is unacceptable in a legal system that regards human liberty as a basic right.'

It has also been held in our case law that in view of the problems inherent in submitting privileged evidence ex parte, the court that conducts a judicial review of an administrative detention is required to act with caution and great precision when examining the material that is brought before it for its eyes only. In such circumstances, the court has a duty to act with extra caution and to examine the privileged material brought before it from the viewpoint of the prisoner, who has not seen the material and cannot argue against it. In the words of Justice A. Procaccia: "… the court has a special duty to act with great care when examining privileged material and to act as the 'mouth' of the prisoner where he has not seen the material against him and cannot defend himself" (HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria [47], at para. 6; see also CrimApp 3514/97 A v. State of Israel [48]).

Thus we see that in view of the reliance on administrative evidence and the admission of privileged evidence ex parte, the court conducting a judicial review under the Internment of Unlawful Combatants Law is required to act with caution and precision in examining the material brought before it. The scope of the judicial review cannot be defined ab initio and it is subject to the discretion of the judge, who will take into account the circumstances of each case on its merits, such as the quantity, level and quality of the privileged material brought before him for his inspection, as opposed to the activity attributed to the prisoner that gives rise to the allegation that he represents a threat to state security. In a similar context the following was held:

'Information relating to several incidents is not the same as information concerning an isolated incident; information from one source is not the same as information from several sources; and information that is entirely based on the statements of agents and informers only is not the same as information that is also supported or corroborated by documents submitted by the security or intelligence services that derive from employing special measures' (per Justice E. Mazza in HCJ 5994/03 Sadar v. IDF Commander in West Bank [49], at para.  6).

Considering all the aforesaid reasons, the requisite conclusion is that reliance on inadmissible evidence and privileged evidentiary material is an essential part of administrative detention. In view of the fact that the quality and quantity of the administrative evidence that supports the cause of detention is subject to judicial review, and in view of the caution with which the court is required to examine the privileged material brought before it ex parte, it cannot be said that the arrangement prescribed in s. 5(e) of the Law, per se, violates the rights of prisoners disproportionately.

(5)     Prisoner's meeting with his lawyer

44. S. 6 of the Law, which is entitled "Right of prisoner to meet with lawyer"' provides the following:

'6. (a) The internee may meet with a lawyer at the

earliest possible date on which such a meeting may be held without harming state security requirements, but no later than seven days prior to his being brought before a judge of the District Court, in accordance with the provisions of s. 5(a).

(b) The Minister of Justice may, by order, confine the right of representation in the proceedings under this Law to a person authorized to act as defence counsel in the military courts under an unrestricted authorization, pursuant to the provisions of s. 318(c) of the Military Justice Law, 5715-1955.'

The appellants raised two main arguments against the proportionality of the arrangements prescribed in the aforesaid s. 6: first, it was argued that under s. 6(a) of the Law, it is possible to prevent a meeting of a prisoner with his lawyer for a period of up to seven days, during which a hearing is supposed to be conducted for the prisoner under s. 3(c) of the Law. It is argued that conducting a hearing without allowing the prisoner to consult a lawyer first is likely to render the hearing meaningless in a manner that constitutes an excessive violation of the right to personal liberty. Secondly, it was argued that s. 6(b) of the Law, which makes representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel, also violates the rights of the prisoner disproportionately.

Regarding the appellants' first argument: no one disputes that the right of the prisoner to be represented by a lawyer constitutes a major basic right that has been recognized in our legal system since its earliest days (see in this regard CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [50], at para. 14, and the references cited there). According to both the basic principles of Israeli law and the principles of international law, the rule is that a prisoner should be allowed to meet with his lawyer as a part of the right of every human being to personal liberty (see the remarks of President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 380-381). Therefore, s. 6(a) of the Law provides that a prisoner should be allowed to meet with his lawyer "at the earliest possible date." It should, however, be recalled that like all human rights, the right to legal counsel, too, is not absolute, and it may be restricted if this is essential for protecting the security of the state (see HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [51], at p. 849; HCJ 6302/92 Rumhiah v. Israel Police [52], at pp. 212-213). As such, s. 6(a) of the Law provides that the meeting of the prisoner with his lawyer may be postponed for security reasons, but no more than seven days may elapse before he is brought before a District Court judge pursuant to s. 5(a) of the Law. Since pursuant to the aforementioned s. 5(a) a prisoner must be brought before a District Court judge no later than fourteen days from the date on which the internment order is granted, this means that a meeting between a prisoner and his lawyer may not be prevented for more than seven days from the time the detention order is granted against him.

Bearing in mind the security purpose of the Internment of Unlawful Combatants Law and in view of the fact that the aforesaid Law was intended to apply in prolonged states of hostilities and even in circumstances where the army is fighting in a territory that is not under Israeli control, it cannot be said that a maximum period of seven days during which a meeting of a prisoner with a lawyer may be prevented when security needs so require falls outside the zone of proportionality (see and cf. Marab v. IDF Commander in Judaea and Samaria [8], where it was held that "[a]s long as the hostilities continue, there is no basis for allowing a prisoner to meet with a lawyer," (at p. 381); see also HCJ 2901/02 Centre for Defence of the Individual v. IDF Commander in West Bank [53]).

In addition to the above, two further points should be made: first, even though the prisoner may be asked to make his submissions in the course of the hearing under s. 3(c) of the Law without having first consulted a lawyer, s. 6(a) of the Law provides that the state should allow the prisoner to meet with his defence counsel "no later than seven days prior to his being brought before a judge of the District Court…." It follows that as a rule, the prisoner is represented in the process of judicial review of the granting of the detention by virtue of the Law. It seems that this could reduce the impact of the violation of the right to consult a lawyer as a part of the right to personal liberty. Secondly, it should be emphasized that the maximum period of seven days does not exempt the state from its obligation to allow the prisoner to meet with his lawyer at the earliest possible opportunity, in circumstances where security needs permit this. Therefore the question of the proportionality of the period during which a meeting between the prisoner and his defence counsel is prevented is a function of the circumstances of each case on its merits. It should be noted that a similar arrangement exists in international law, which determines the period of time during which a meeting with a lawyer may be prevented with regard to all the circumstances of the case, without stipulating maximum times for preventing the meeting (see in this regard, Marab v. IDF Commander in Judaea and Samaria [8], at p. 381).

45.  The appellants' second argument concerning s. 6(b) of the Law should also be rejected. Making representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel under the provisions of s. 318(c) of the Military Justice Law, 5715-1955, is necessary for security reasons, in view of the security-sensitive nature of administrative detention proceedings. The appellants did not argue that the need for an unrestricted authorization as aforesaid affected the quality of the representation that they received, and in any case they did not point to any real violation of their rights in this regard. Consequently the appellants' arguments against the proportionality of the arrangement prescribed in s. 6 of the Law should be rejected.

 (6)      The length of internment under the Law

46.       From the provisions of ss. 3, 7 and 8 of the Internment of Unlawful Combatants Law it emerges that an internment order under the Law need not include a defined date for the end of the internment. The Law itself does not prescribe a maximum period of time for the internment imposed thereunder, apart from the determination that it should not continue after the hostile acts of the force to which the prisoner belongs against the State of Israel "have ceased" (see ss. 7 and 8 of the Law). According to the appellants, this is an improper internment without any time limit, which disproportionately violates the constitutional right to personal liberty. In reply, the state argues that the length of the internment is not "unlimited", but depends on the duration of the hostilities being carried out against the security of the State of Israel by the force to which the prisoner belongs.

It should be said at the outset that issuing an internment order that does not include a specific time limit for its termination does indeed raise a significant difficulty, especially in the circumstances that we are addressing, where the "hostile acts" of the various terrorist organizations, including the Hezbollah organization which is relevant to the appellants' cases, have continued for many years, and naturally it is impossible to know when they will cease. In this reality, prisoners under the Internment of Unlawful Combatants Law may remain in detention for prolonged periods of time. Nevertheless, as we shall explain immediately, the purpose of the Law and the special circumstances in which it was intended to apply, lead to the conclusion that the fundamental arrangement that allows detention orders to be issued without a defined date for their termination does not depart from the zone of proportionality, especially in view of the judicial review arrangements prescribed in the Law.

As we have said, the purpose of the Internment of Unlawful Combatants Law is to prevent "unlawful combatants" as defined in s. 2 of the Law from returning to the cycle of hostilities, as long as the hostile acts are continuing and threatening the security of the citizens and residents of the State of Israel. On the basis of a similar rationale, the Third Geneva Convention allows prisoners of war to be interned until the hostilities have ceased, in order to prevent them from returning to the cycle of hostilities as long as the fighting continues. Even in the case of civilians who are detained during an armed conflict, the rule under international humanitarian law is that they should be released from detention immediately after the concrete cause for the detention no longer exists and no later than the date of cessation of the hostilities (see J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vol. 1, 2005), at page 451; also cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), at pages 518-519, where the United States Supreme Court held that the detention of members of forces hostile to the United States and operating against it in Afghanistan until the end of the specific dispute that led to their arrest is consistent with basic and fundamental principles of the laws of war).

The conclusion that emerges in view of the aforesaid is that the fundamental arrangement that allows a internment order to be granted under the Law without a defined termination date, except for the determination that the internment will not continue after the hostile acts against the State of Israel have ended, does not exceed the bounds of the room for constitutional maneuver. It should, however, be emphasized that the question of the proportionality of the duration of internment under the Law should be examined in each case on its merits and according to its specific circumstances. As we have said, the Internment of Unlawful Combatants Law prescribes a duty to conduct a periodic judicial review once every six months. The purpose of the judicial review is to examine whether the threat presented by the prisoner to state security justifies the continuation of the internment, or whether the internment order should be cancelled in circumstances where the release of the prisoner will not harm the security of the state or where there are special reasons justifying the release (see s. 5(c) of the Law). When examining the need to extend the internment, the court should take into account inter alia the period of time that has elapsed since the order was issued. The ruling in A v. Minister of Defence [1] concerning detention under the Emergency Powers (Detentions) Law, per President A. Barak, holds true in our case as well:

'Administrative detention cannot continue indefinitely. The longer the period of detention has lasted, the more significant the reasons that are required to justify a further extension of detention. With the passage of time the measure of administrative detention becomes onerous to such an extent that it ceases to be proportionate' (ibid., at p. 744).

Similarly it was held in A v. IDF Commander [16] with regard to administrative detention by virtue of security legislation in the region of Judea and Samaria that -

'The duration of the detention is a function of the threat. This threat is examined in accordance with the circumstances. It depends upon the level of risk that the evidence attributes to the administrative prisoner. It depends upon the credibility of the evidence itself and how current it is. The longer the duration of the administrative detention, the greater the onus on the military commander to demonstrate the threat presented by the administrative prisoner' (ibid., at para. 7).

Indeed, as opposed to the arrangements prescribed in the Emergency Powers (Detentions) Law and in the security legislation, a court acting pursuant to the Internment of Unlawful Combatants Law does not conduct a judicial review of the extension of the internment order, but examines the question of whether there is a justification for cancelling an existing order, for the reasons listed in s. 5(c) of the Law. Nevertheless, even an internment order under the Internment of Unlawful Combatants Law cannot be sustained indefinitely. The period of time that has elapsed since the order was granted constitutes a relevant and important consideration in the periodic judicial review for determining whether the continuation of the internment is necessary. In the words of Justice A. Procaccia in a similar context:

'The longer the period of the administrative detention, the greater the weight of the prisoner's right to his personal liberty when balanced against considerations of public interest, and therefore the greater the onus placed upon the competent authority to show that it is necessary to continue holding the person concerned in detention. For this purpose, new evidence relating to the prisoner's case may be required, and it is possible that the original evidence that led to his internment in the first place will be insufficient' (Kadri v. IDF Commander in Judaea and Samaria  [47], at para. 6).

In view of all the above, a court that conducts a judicial review of an internment under the Internment of Unlawful Combatants Law is authorized to confine and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant" and in view of the time that has passed since the internment order was issued. By means of judicial review it is possible to ensure that the absence of a concrete termination date for the internment order under the Law will not constitute an excessive violation of the right to personal liberty, and that prisoners under the Law will not be interned for a longer period greater than that required by material security considerations.

(7) The possibility of conducting criminal proceedings parallel to an internment proceeding by virtue of the Law

47. S. 9 of the Law, which is entitled "Criminal proceedings", provides the following:

'9. (a) Criminal proceedings may be initiated against an unlawful combatant under the provisions of any law.

(b) The Chief of Staff may make an order for the internment of an unlawful combatant under s. 3, even if criminal proceedings have been initiated against him under the provisions of any law.'

According to the appellants, the aforesaid s. 9 violates the right to personal liberty disproportionately since it makes it possible to detain a person under the Internment of Unlawful Combatants Law even though criminal proceedings have already been initiated against him, and vice versa. The argument is that by conducting both sets of proceedings it is possible to continue to intern a person even after he has finished serving the sentence imposed on him in the criminal proceeding, in a manner that allegedly amounts to cruel punishment. In reply the state argued that this is a fitting and proportionate arrangement in view of the fact that it is intended to apply in circumstances in which a person will shortly finish serving his criminal sentence and hostilities are still continuing between the organization of which he is a member and the State of Israel; consequently, his release may harm state security.

In relation to these arguments we should reiterate what we said earlier (at para. 33 above), i.e. that initiating a criminal trial against a person is different in its nature and purpose from the measure of administrative detention. In general it is desirable and even preferable to make use of criminal proceedings where this is possible. Recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are not possible, due to lack of sufficient admissible evidence or because it is impossible to disclose privileged sources. However, the reality of prolonged terrorist operations is complex. There may be cases in which a person is detained under the Internment of Unlawful Combatants Law and only at a later stage evidence is discovered that makes it possible to initiate criminal proceedings. There may be other cases in which a person has been tried and convicted and has served his sentence, but this does not provide a satisfactory solution to preventing the threat that he presents to state security in circumstances in which, after having served the sentence, he may once again become a security threat. Since a criminal trial and administrative detention are proceedings that differ from each other in their character and purpose, they do not rule each other out, even though in my opinion substantial and particularly weighty security considerations are required to justify recourse to both types of proceeding against the same person. In any case, the normative arrangement that allows criminal proceedings to be conducted alongside detention proceedings under the Law does not, in itself, create a disproportionate violation of the right to liberty of the kind that requires our intervention.

Interim summary

48.  Our discussion thus far of the requirement of proportionality has led to the following conclusions: first, the measure chosen by the legislator, i.e. administrative detention that prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel, realizes the legislative purpose and therefore satisfies the requirement of a rational connection between the legislative measure and the purpose that the Law is intended to realize. Secondly, the measures mentioned by the appellants in their arguments before us, i.e. recognizing them as prisoners of war, bringing them to a criminal trial or detaining them under the Emergency Powers (Detentions) Law, do not realize the purpose of the Internment of Unlawful Combatants Law and therefore they cannot constitute a suitable alternative measure to internment in accordance with the Law. Thirdly, the specific arrangements prescribed in the Law do not, per se and irrespective of the manner in which they are implemented, violate the right to personal liberty excessively, and they fall within the bounds of the room for constitutional maneuver granted to the legislature. In view of all this, the question that remains to be examined is whether the combination of the arrangements prescribed in the Law satisfies the test of proportionality in the narrow sense. In other words, is the violation of the right to personal liberty reasonably commensurate with the public benefit that arises from it in achieving the legislative purpose? Let us now examine this question.

Proportionality in the narrow sense - A reasonable relationship between  violation of the constitutional right and the public benefit it engenders

49.       The Internment of Unlawful Combatants Law was enacted against the background of a harsh security situation. The citizens and residents of the State of Israel have lived under the constant threat of murderous terrorism of which they have been victim for years and which has harmed the innocent indiscriminately. In view of this, we held that the security purpose of the Law - the removal of "unlawful combatants" from the terrorist organizations' cycle of hostilities against the State of Israel - constitutes a proper purpose that is based on a public need of a kind that is capable of justifying a significant violation of the right to personal liberty. For all these reasons, we were of the opinion that the legislature should be accorded relatively wide room for maneuver to allow it to choose the proper measure for realizing the legislative purpose (see para. 31 above).

As we have said, the measure that the legislature chose in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention in accordance with the arrangements that are prescribed in the Law. There is no doubt that this is a damaging measure that should be employed as little as possible. However, a look at the combined totality of the above arrangements, in the light of the interpretation that we discussed above, leads to the conclusion that according to constitutional criteria, the violation of the constitutional right is reasonably commensurate with the social benefit that arises from the realization of the legislative purpose. This conclusion is based on the following considerations taken together:

 First, for the reasons that we discussed at the beginning of our deliberations, the scope of application of the Law is relatively limited: the Law does not apply to citizens and residents of the State of Israel but only to foreign parties who endanger the security of the state (see para. 11 above).

Secondly, the interpretation of the definition of "unlawful combatant" in s. 2 of the Law is subject to constitutional principles and international humanitarian law that require proof of an individual threat as a basis for administrative detention. Consequently, for the purpose of internment under the Internment of Unlawful Combatants Law, the state must furnish administrative proof that the prisoner directly or indirectly played a material part - one which is neither negligible nor marginal - in hostile acts against the State of Israel; or that the prisoner belonged to an organization that is perpetrating hostile acts, taking into account his connection and the extent of his contribution to the organization's cycle of hostilities in the broad sense of this concept. In our remarks above we said that proving the conditions of the definition of "unlawful combatant" in the said sense includes proof of a personal threat that arises from the form in which the prisoner was involved in the terrorist organization. We also said that the state has declared before us that until now it has taken pains to prove the personal threat of all the prisoners under the Law specifically, and it has refrained from relying on the probative presumptions in ss. 7 and 8 of the Law. In view of this, we saw no reason to decide the question of the constitutionality of those presumptions (see paras. 24 and 25 above).

Thirdly, we held that in view of the fact that administrative detention is an unusual and extreme measure, and in view of its significant violation of the constitutional right to personal liberty, the state is required to prove, by means of clear and convincing evidence, that the conditions of the definition of "unlawful combatant" are fulfilled and that the continuation of the internment is essential. This must be done in both the initial and the periodic judicial reviews. In this context we held that importance should be attached both to the quantity and the quality of the evidence against the prisoner and to the extent that the relevant intelligence information against him is current (see paras. 22 and 23 above).

Fourthly, we attributed substantial weight to the fact that internment orders under the Internment of Unlawful Combatants Law are subject to preliminary and periodic judicial reviews before a District Court judge, whose decisions may be appealed to the Supreme Court, which will hear the case with a single judge. Within the framework of these proceedings, the judge is required to consider the question of the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In view of the reliance upon administrative evidence and the fact that privileged evidence is admitted ex parte, we held that the judge should act with caution and great precision when examining the material brought before him. We also held that a court that conducts a judicial review of internment under the Law may restrict and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant", and in view of the time that has elapsed since the internment order was issued. For this reason we said that it is possible, through the process of judicial review, to ensure that the absence of a specific date for the termination of the detention order under the Law does not violate the right to personal liberty excessively, and that prisoners by virtue of the Law will not be interned for a longer period than what is required by substantial security considerations (para. 46 above).

Finally, although the arrangements prescribed in the Law for the purpose of exercising the power of internment are not the only possible ones, we reached the conclusion that the statutory arrangements that we considered do not exceed the bounds of the room for maneuver to an extent that required our intervention. In our remarks above we emphasized that the periods of time prescribed by the Law for conducting a preliminary judicial review after the internment order has been granted, and with respect to preventing a meeting between the prisoner and his lawyer, constitute maximum periods that do not exempt the state from the duty to make an effort to shorten these periods in each case on its merits, insofar as this is possible in view of the security constraints and all the circumstances of the case. We also held that internment under the Internment of Unlawful Combatants Law cannot continue indefinitely, and that the question of the proportionality of the duration of the detention must also be examined in each case on its merits according to the particular circumstances.

In view of all of the aforesaid considerations, and in view of the existence of relatively wide room for constitutional maneuver in view of the essential purpose of the Law as explained above, our conclusion is that the Internment of Unlawful Combatants Law satisfies the third subtest of the requirement of proportionality, i.e., that the violation of the constitutional right to personal liberty is reasonably commensurate with the benefit accruing to the public from the said legislation. Our conclusion is based on the fact that according to the interpretation discussed above, the Law does not allow the internment of innocent persons who have no real connection to the cycle of hostilities of the terror organizations, and it establishes mechanisms whose purpose is to ameliorate the violation of the prisoners' rights, including a cause of detention that is based on a threat to state security and the conducting of a hearing and preliminary and periodic judicial reviews of internment under the Law.

Therefore, for all the reasons that we have mentioned above, it is possible to determine that the violation of the constitutional right to personal liberty as a result of the Law, although significant and severe, is not excessive. Our conclusion is therefore that the Internment of Unlawful Combatants Law satisfies the conditions of the limitation clause, and there is no constitutional ground for our intervention.

From the General to the Specific

50.  As we said at the outset, the appellants, who are inhabitants of the Gaza Strip, were originally detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out pursuant to security legislation that was in force in the Gaza Strip. Following the end of military rule in the Gaza Strip in September 2005 and the nullification of the security legislation in force there, on 20 September 2005 the Chief of Staff issued internment orders for the appellants under the Internment of Unlawful Combatants Law.

On 22 September 2005 the Tel-Aviv-Jaffa District Court began the initial judicial review of the appellants' case. From then until now the District Court has conducted four periodic judicial reviews of the appellants' continuing internment. The appeal against the decision of the District Court not to order the release of the appellants within the framework of the initial judicial review was denied by this court on 14 March 2006 (Justice E. Rubinstein in CrimA 1221/06 Iyyad v. State of Israel [54]). Before us are the appeals on three additional periodic decisions of the District Court not to rescind the appellants' internment orders.

51.  In their pleadings, the appellants raised two main arguments regarding their particular cases: first, it was argued that according to the provisions of the Fourth Geneva Convention, Israel should have released the appellants when the military rule in the Gaza Strip ended, since they were inhabitants of an occupied territory that was liberated. Secondly, it was argued that even if the Internment of Unlawful Combatants Law is constitutional, no cause for internment thereunder has been proved with respect to the appellants. According to this argument, it was not proved that the appellants are members of the Hezbollah organization, nor has it been proved that their release would harm state security.

52.  We cannot accept the appellants' first argument. The end of military rule in the Gaza Strip did not obligate Israel to automatically release all the prisoners it held who are inhabitants of the Gaza Strip, as long as the personal threat posed by the prisoners persisted against the background of the continued hostilities against the State of Israel. This conclusion is clearly implied by the arrangements set out in arts. 132-133 of the Fourth Geneva Convention. Art. 132 of the Convention establishes the general principle that the date for the release of prisoners is as soon as the reasons that necessitated their internment no longer exist. The first part of art. 133 of the Convention, which relates to a particular case that is included within the parameters of the aforesaid general principle, goes on to provide that the internment will end as soon as possible after the close of hostilities. Art. 134 of the Convention, which concerns the question of the location at which the prisoners should be released, also relates to the date on which hostilities end as the date on which prisoners should be released from internment. Unfortunately, the hostile acts of the terrorist organizations against the State of Israel have not yet ceased, and they result in physical injuries and mortalities on an almost daily basis. In such circumstances, the laws of armed conflict continue to apply. Consequently it cannot be said that international law requires Israel to release the prisoners that it held when military rule in the Gaza Strip came to an end, when it is possible to prove the continued individual danger posed by the prisoners against the background of the continued hostilities against the security of the state.

53. With regard to the specific internment orders against the appellants by virtue of the Internment of Unlawful Combatants Law, the District Court heard the testimonies of experts on behalf of the security establishment and studied the evidence brought before it. We too studied the material that was brought before us during the hearing of the appeal. The material clearly demonstrates the close links of the appellants to the Hezbollah organization and their role in the organization's ranks, including involvement in hostile acts against Israeli civilian targets.  We are therefore convinced that the individual threat of the appellants to state security has been proved, even without resorting to the probative presumption in s. 7 of the Law (see and cf. per Justice E. Rubinstein in Iyyad v. State of Israel [54], at para. 8(11) of his opinion). In view of the aforesaid, we cannot accept the appellants' contention that the change in the form of their detention - from detention by virtue of an order of the IDF Commander in the Gaza Strip to internment orders under the Law - was done arbitrarily and without any real basis in the evidence. As we have said, the change in the form of detention was necessitated by the end of the military rule in the Gaza Strip, and that is why it was done at that time. The choice of internment under the Internment of Unlawful Combatants Law as opposed to detention under the Emergency Powers (Detentions) Law was made, as we explained above, because of the purpose of the Law under discussion and because it is suited to the circumstances of the appellants' cases.

The appellants further argued that their release does not pose any threat to state security since their family members who were involved in terrorist activities have been arrested or killed by the security forces, so that the terrorist infrastructure that existed before they were detained no longer exists. They also argued that the passage of time since they were arrested reduces the risk that they present. Regarding these arguments it should be said that after inspecting the material submitted to us, we are convinced that the arrest or death of some of the appellants' family members does not per se remove the security threat that the appellants would present were they to be released from detention. We are also convinced that, in the circumstances of the case, the time that has passed since the appellants were first detained has not reduced the threat that they present. In its decision in the third periodic review, the trial court addressed this issue as follows:

'The total period of the detention is not short. But this is countered by the anticipated threat to state security if the prisoners are released. As we have said, a proper balance should be struck between the two. The experts are once again adamant in their opinion that there is a strong likelihood that the two prisoners will resume their terrorist activity if they are released. In such circumstances, the operational abilities of the Hezbollah infrastructure in the Gaza Strip and outside it will be enhanced and the threats to the security of the state and its citizens will increase. The current situation in the Gaza Strip is of great importance to our case. The fact that the Hamas organization has taken control of the Gaza Strip and other recent events increase the risks and, what is more, the difficulty of dealing with them.... It would therefore be a grave and irresponsible act to release these two persons, especially at this time, when their return to terrorism can be anticipated and is liable to increase the activity in this field. I cannot say, therefore, that the passage of time has reduced the threat presented by the two prisoners, who are senior figures in the terrorist infrastructure, despite the differences between them. Neither has the passage of time reduced the threat that they represent to an extent that would allow their release.'

In its decision in the fourth periodic review the trial court also emphasized the great threat presented by the two appellants:

'The privileged evidence brought before me reveals that the return of the two to the field is likely to act as a springboard for serious attacks and acts of terror. In other words, according to the evidence brought before me, the respondents are very dangerous. In my opinion it is not at all possible to order their release. This conclusion does not ignore the long years that the two of them have been held behind prison walls. The long period of time has not reduced the threat that they represent' (at page 6 of the court's decision of 20 March 2008).

In view of all of these reasons, and after having studied the material that was brought before us and having been convinced that there is sufficient evidence to prove the individual security threat represented by the appellants, we have reached the conclusion that the trial court was justified when it refused to cancel the internment orders in their cases. It should be pointed out that the significance of the passage of time naturally increases when we are dealing with administrative detention. At the present time, however, we find no reason to intervene in the decision of the trial court.

In view of the result that we have reached, we are not required to examine the appellants' argument against the additional reason that the trial court included in its decision, relating to the fact that the evidence was strengthened by the silence of the first appellant in the judicial review proceeding that took place in his case, a proceeding that was based, inter alia, on privileged evidence that was not shown to the prisoner and his legal representative. The question of the probative significance of a prisoner's silence in judicial review proceedings under the Internment of Unlawful Combatants Law does not require a decision in the circumstances of the case before us and we see no reason to express a position on this matter.

Therefore, for all of the reasons set out above, we have reached the conclusion that the appeals should be denied.

 

Justice E.E. Levy:

I agree with the comprehensive opinion of my colleague, the President.

It is in the nature of things that differences may arise between the rules of international humanitarian law - especially written rules - and the language of Israeli security legislation, if only because those conventions that regulate the conduct of players on the international stage were formulated in a very different reality, and their drafters did not know of entities such as the Hezbollah organization and the like.

Therefore, insofar as it is possible to do so by means of legal interpretation, the court will try to narrow these differences in a way that realizes both the principles of international law and the purpose of internal legislation. In this regard I will say that I would have preferred to refrain from arriving at any conclusions, even in passing, regarding the provisions of ss. 7 and 8 of the Internment of Unlawful Combatants Law, 5762-2002. These provisions are a central part of this Law, as enacted by the Knesset. Insofar as there are differences between them and the provisions of international law, as argued by the appellants and implied by the state's declarations with regard to the manner in which it conducts itself de facto, the legislature ought to take the initiative and address the matter.

Justice A. Procaccia:

I agree with the profound opinion of my colleague, President Beinisch.

Appeals denied as per the judgment of President D. Beinisch.

8 Sivan 5768

11 June 2008

Yassin v. Minister of Defense

Case/docket number: 
HCJ 9060/08
Date Decided: 
Monday, May 7, 2012
Decision Type: 
Original
Abstract: 

In HCJ 9060/08 petitions were filed with the High Court against the illegal construction of  structures on a site next to the Beit El settlement. Following a series of hearings the State notified the court of its adoption of  a policy concerning the demolition of illegal building on private land and the arrangement of  construction on State land. As a result of this policy, illegal construction located on private land would be removed.  The Court gave a judgment giving effect to the State's undertaking to ensure the removal of the illegal structures within one year of the filing of said notification.

 

One year later the State filed an application to "renew the hearing of the petition" based on the desire to reconsider the manner of implementing the policy  regarding illegal construction on private land. The State's reasons for the application were: (a) that an action had been filed in the District Court concerning the substantive question of the ownership and hence the legality of the structures and the inappropriateness of ignoring the existence of a pending action which was of clear relevance to the demolition order; (b) that the examination of the structures under adjudication in the petition could not be separated from illegal construction in other locations. The policy relating to priorities in enforcement of the law in the Zone should therefore be reconsidered, keeping in mind planning and property aspects and other political, public and operational aspects. The State therefore requested that the court grant a delay to enable the formulation of an updated policy, during which the structures would not be removed.

The petitioners opposed the request, arguing that the State's failure to fulfill its obligation contained in a judgment constituted contempt of court, that there was no procedural proceeding that enabled the opening of a completed proceeding, and that the State's change of position was politically motivated and was not supported on legal grounds.

 

In his decision of 7 May 2012 President Grunis ruled that there were no grounds for reopening the hearing on the petition. President Grunis ruled that the principle of res judicata does not allow the opening of an already completed proceeding. The principle of res judicata is based on a number of public interests. It enables the delineation of the borders of the legal proceeding, it assists in clarifying the legal position, it prevents the inconveniencing of litigants with the same legal issue and repeat litigation, and it ensures the proper functioning of the judicial system. From a constitutional perspective, the principle of res judicata also reflects the separation of powers between the branches of government in the sense that it signifies the termination of role of the judicial branch in the matter, given that the execution of judgment is a matter for the executive authority.

 

The President further noted that apart from the res judicata issue, the State’s request to open the case also undermined the basic principle of fulfillment of judgments that ensures that the judicial proceeding does not become a meaningless, farcical proceeding, but rather that its results be executed within the time period prescribed by the court. This principle is particularly relevant when the body charged with execution of the judgment is the state. Finally, a change of policy is not grounds for deviating from the principle of res judicata, for otherwise the court would be required to reopen proceedings whenever a change in policy was decided on. 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

The Supreme Court Sitting as the High Court of Justice

                                                                                                            HCJ 9060/08

Before:                                         The Honorable President A. Grunis

                                                     The Honorable Justice S. Joubran                           

                                                     The Honorable Justice U. Vogelman          

The Petitioners:

  1. Khaled Abdallah Abd al-Ghani Yassin
  2. Harbi Ibrahim Mustafa Mustafa
  3. Abd al-Rahim Abdallah Abd al-Ghani Dar Yassin

                                                        v.

 

The Respondents:

  1. Minister of Defense, Ehud Barak
  2. IDF Commander in the West Bank
  3. Head of Civil Administration
  4.  Police District Commander for Judea and Samaria,

     Shlomo Katabi

  1. Beit El Local Council
  2. Beit El Yeshiva Center

Applicants to Join:

  1. M.K  Zehava Galon
  2. The Meretz faction
  3. The Ta’al faction
  4. M.K Dr. Ahmad Tibi
  5. Guy Sagiv
  6. David Abudraham
  7. Hana Yifat Abudraham

                                      Application of Respondents 1-4 dated April 27, 2012

Date of Session:                14th of Iyyar, 5772 (May 6, 2012)        

For the Petitioners:               Adv. Michael Sfard; Adv. Shlomi Zacharia; Adv. Avisar Lev

For Respondents 1 – 4:        Adv. Uri Keidar; Adv. Osnat Mandel

For Respondent 5:             Adv. Nethanel Katz

For Respondent 6:                Adv. Yaron Kostliz; Adv. Noa Firer

For Applicants to Join 1- 2: Adv. Omer Shatz

For Applicants to Join 3- 4: Adv. Osama Saadi; Adv. Amar Yaasin.

For Applicants to Join 5-7:  Adv. Ehud Yelink

 

Facts

In HCJ 9060/08 petitions were filed with the High Court against the illegal construction of structures on a site next to the Beit El settlement. Following a series of hearings the State notified the court of its adoption of  a policy concerning the demolition of illegal building on private land and the arrangement of  construction on State land. As a result of this policy, illegal construction located on private land would be removed.  The Court gave a judgment giving effect to the State's undertaking to ensure the removal of the illegal structures within one year of the filing of said notification.

One year later the State filed an application to "renew the hearing of the petition" based on the desire to reconsider the manner of implementing the policy  regarding illegal construction on private land. The State's reasons for the application were: (a) that an action had been filed in the District Court concerning the substantive question of the ownership and hence the legality of the structures and the inappropriateness of ignoring the existence of a pending action which was of clear relevance to the demolition order; (b) that the examination of the structures under adjudication in the petition could not be separated from illegal construction in other locations. The policy relating to priorities in enforcement of the law in the Zone should therefore be reconsidered, keeping in mind planning and property aspects and other political, public and operational aspects. The State therefore requested that the court grant a delay to enable the formulation of an updated policy, during which the structures would not be removed.

The petitioners opposed the request, arguing that the State's failure to fulfill its obligation contained in a judgment constituted contempt of court, that there was no procedural proceeding that enabled the opening of a completed proceeding, and that the State's change of position was politically motivated and was not supported on legal grounds.

Held

In his decision of 7 May 2012 President Grunis ruled that there were no grounds for reopening the hearing on the petition. President Grunis ruled that the principal of res judicata does not allow the opening of an already completed proceeding. The principle of res judicata is based on a number of public interests. It enables the delineation of the borders of the legal proceeding, it assists in clarifying the legal position, it prevents the inconveniencing of litigants with the same legal issue and repeat litigation, and it ensures the proper functioning of the judicial system. From a constitutional perspective, the principle of res judicata also reflects the separation of powers between the branches of government in the sense that it signifies the termination of role of the judicial branch in the matter, given that the execution of judgment is a matter for the executive authority.

The President further noted that apart from the res judicata issue, the State’s request to open the case also undermined the basic principle of fulfillment of judgments that ensures that the judicial proceeding does not become a meaningless, farcical proceeding, but rather that its results be executed within the time period prescribed by the court. This principle is particularly relevant when the body charged with execution of the judgment is the state. Finally, a change of policy is not grounds for deviating from the principle of res judicata, for otherwise the court would be required to reopen proceedings whenever a change in policy was decided on. 

 

 

 

     
 

Israeli Supreme Court Decisions Cited

 

[1]        HCJ 3267/97 Rubinstein v. Minister of Defense [1999] IsrSC 55 (2) 241.

 

[2]        HCJ 7713/05 Noah – Israel Association of Organizations for the Protection of Animals v. Attorney General (not reported, 22.2.2006).

 

[3]        HCJ 29/52 S.A. Shachupek v. Tel Aviv – Jaffa City Council [1953] IsrSC 7 603.

 

[4]        CA 9085/00  Shitrit v. Sharvat Brothers Construction Co. Ltd [2003] IsrSC57(5) 462.

 

[5]        HCJ 9669/10 Abd el-Rahman Kassam Abd el-Rahman v. Minister of Defense [2014].

 

[6]        HCJ 7891/07 Peace Now Movement - Sh.A.L. Educational Enterprises v. Minister of Defense [2013].

 

[7]        HCJ 306/85 Kahane v. Knesset Chairman [1985] IsrSC 39 (4) 485.

 

[8]        HCJ 8887/06 Yusuf Musa Abd a-Razeq al-Nabut v. Minister of Defense (not yet reported, 25.3.12)

 

 

Decision

President A. Grunis

1.         Five permanent buildings and five prefabricated structures which were erected adjacent to the Beit El settlement, on a site known as "the Ulpana Hill"  are the focus of this proceeding. In the petition forming the subject of the current proceeding, filed on 29 October 2008, the court was requested to order the execution of demolition orders and stop-work orders issued against these structures. Four hearings were conducted in the presence of the litigants, at the end of which a judgment was given on 21 September 2011.

 In the course of clarifying the petition a long series of notifications was submitted to the court by the litigants as well as responding affidavits of the Respondents, after the issuing of order nisi in the petition (on 15 September 2010). In the responses of Respondents 1 - 4 (hereinafter: – "the State") it was consistently claimed that the land upon which the structures were built or located was privately owned Palestinian land. Accordingly the Civil Administration issued stop-work orders and demolition orders for the structures.  The claims raised by Respondent 6, the Beit El Yeshiva Center concerning the purchase of the land by the settling movement "Amana" were examined by the State and rejected.  The State's argument, as raised in the course of the hearings concerning the petition, is that since the structures were erected on settled land registered in the Tabu books, no validity attaches to the purchase claims for as long as the registration has not been altered. The State further told us that no transaction license had been requested for the alleged purchase, and in the absence of such license, the transaction, to the extent that it occurred, is invalid (notice on behalf of the State on 10 January 2010).

2,         On 1 May 2011 the State filed a response to the order nisi in which it stated that on the 28 February 2011 the Prime Minister had convened a meeting with the participation of senior ministers, the Attorney General and other relevant officials. In this meeting "the foundation was laid for an integrated policy concerning the demolition of illegal building on private land and regarding the arrangement of construction on State land, so that as a rule, illegal construction located on private land was to be removed". In that meeting it was also decide to take measures for the removal of the structures forming the subject of the petition within a year (response on behalf of the State of 1 May 2011, pp. 4 - 5).

3.         Following the notification of the State a judgment was given on the petition, at the end of the hearing conducted on 21 September 2011 (President D. Beinisch, Justices S. Joubran, and U. Vogelman). The judgment anchored the State's notification of 1 May 2011 to the court, and determined the following:

 

                        "We have recorded the State's notification of 1 May 2011 and the notification given to the court today - that pursuant to the decision adopted in a meeting headed by the Prime Minister and additional ministers in the Government, as well as the Attorney General, in accordance with which construction on private land would be removed, as opposed to construction on State land; it was decided that the construction forming the subject of the petition would be removed within one year of the filing of the said notification…. to the extent that the structures are not demolished before then by the possessors thereof.

 

                        In this notification the petition has been exhausted and the proceeding was terminated".

 

Hence, in accordance with the State’s notification to the court, which was incorporated into this judgment, the State was supposed to have demolished the structures by 1 May 2012.

4.         A year passed from the time of the State's notification being given, but the demolition orders were not executed. Instead, on the 27 April 2012, a few days before the termination of the period for the demolition of the structures, the State filed a notification and application to "renew the hearing of the petition". In the application it was written that "The Prime Minister and a ministerial forum wish to reconsider the manner of implementing the policy agreed upon, and as a result thereof, to also reconsider their specific position of which they gave notice to the Honorable Court concerning this petition" (notification of the State of 27 April 2012, p. 2). The State further noted that the structures earmarked for demolition were populated, with about 30 families resident therein and that a claim had been made by an Israeli body that the area on which most of the structures were erected was actually purchased by him in the year 2000, and that an action had been filed on the matter in the District Court (it will be noted that the action was filed on 19 September 2011, i.e. two days before the decision was given in the current proceeding). The State noted that even though the claims concerning the purchase of the land had already been raised in the past and rejected by the competent authorities in the Civil Administration, nonetheless, it argued that it was not possible to ignore the fact that the proceeding in the District Court was pending. The State further argued that the examination of the structures under discussion in the petition could not be separated from other construction in the settlement of Beit El, that most of which had been erected on private land, outside the current boundaries of the seizure order applied in the area. As such, it was claimed that any decision adopted in relation to the structures under discussion in the petition is liable to influence other building in Beit El and in other settlements, which were similarly built on private Palestinian land. In this context the State attorney claimed that in a series of petitions an undertaking had been given to remove structures in Judea and Samaria area or that the State had been obligated to do so in rulings of the Court. It was argued, that this obligation had broad implications and it was therefore "decided to reconsider the priorities in enforcement of the law in the area, which along with the planning and property aspects also had consideration for political, public and operational aspects"(ibid, p.5). In the framework of the renewed consideration preference would still be given to dealing with construction on private land, but the future of each particular structure would not be examined "from a narrow perspective" but rather in its overall context and having consideration for the "context of the events related to the removal" (ibid, p.6). It was further decided to suspend any further act of enforcement in the field until the exhausting of the process of legal clarification underway in relation to the ownership of the land. In order to enable the renewed consideration, the State requested the court to renew the hearing on the petition and to grant a delay of 90 days for the formulation of an updated policy, during which the structures would not be removed. Notably, in the course of the hearing, attorney for the State mentioned a period of 60 days.

5.         The petitioners objected to the State's application.  In their response the petitioners dwelt on the difficulty of reopening an issue which had terminated in a judgment. They claimed that the State's failure to fulfill its undertaking, that had been included in the judgment, constitutes contempt of court. According to the petitioners not only was there no procedural proceeding that enabled the opening of a completed proceeding, also but that the State had not presented any grounds for opening the proceeding. According to the petitioners the change of position was politically motivated and was not supported up by lawful, legal grounds that justifies the opening of the proceeding in which a judgment had been given.

6.         In wake of the State's application to reopen the proceeding, on 6 May 2012 we conducted a hearing in the presence of the litigants in which they reiterated their written pleadings. We examined the pleadings and have found no grounds for acceding to the application to open the proceeding. It is well established that "the point of departure is that once a judgment has been given, the judgment constitutes the final word in the litigation with respect to any additional litigation on the matter forming the subject of the ruling. This is the principle of res judicata. This principle is based on the public interest of the public, as well as that of the parties in the proceeding, that court proceedings should be brought to an end and that justice be done with the individual, without subjecting him to additional proceedings by reason of the same grounds or the same dispute" (HCJ 3267/97 Rubinstein v. Minister of Justice [1], at p. 244; see also HCJ 7713/05 Noah – Israel Association of Organizations for the Protection of Animals v. Attorney General [2] (hereinafter: "Noah case"). Once a final judgment has been made in a litigation, the parties cannot raise any claims, and certainly not claims that were resolved in the judgment (see: Nina Zaltzman, Res Judicata in Civil Proceedings, 3-12 (1991); (hereinafter: "Zaltzman"). The judgment makes it clear to all those involved that the legal proceeding is completed, and that subject to special exceptions all the relevant parties must act in order to execute the judgment and to give effect to the operative result determined therein.

7.         The principle of res judicata relies on a series of public interests. It enables the demarcation of the legal proceeding; it assists in clarifying the legal situation. It prevents the litigants from being inconvenienced with the same issue and a repeat litigation, and ensures the proper functioning of the judicial system (Zaltzman, pp. 12-15). From a constitutional perspective, the principle of res judicata also reflects the separation of powers in the sense that it signifies the completion of the judicial authority’s handling of the matter brought before it. The execution of the judgment is no longer a matter for the judicial branch but passes to the executive branch, whether by the mechanism of the Execution Office, or the various government ministries, where it concerns a judgment of the High Court of Justice directed against an authority of the central government.

8.         Even though the principal of res judicata has a number of exceptions, their scope is quite limited. Hence, for example, already in 1952 Justice M. Landau ruled in HCJ 29/52 S.A. Shachupek v. Tel Aviv – Jaffa City Council [3] at pp. 604-605:

 

"Nothing comes after the judgment of the High Court of Justice on a matter subject to its authority, and no argument can be heard claiming that a judgment of this court should be vacated because it was mistaken in its interpretation of the law, or in the determination of the facts, or in the procedure for the hearing that it adopted. The possibilities for renewed examination of a judgment of this court are restricted within very narrow borders. In accordance with general principles, a judgment may be vacated when it was granted as the result of an act of deception by one of the parties. This court will also vacate a judgment at the request of a party that was not present during the hearing, if convinced that the party’s absence was not his own fault. "

 

See also in the position of Justice A. Procaccia in CA 9085/00 Shitrit v. Sharvat Brothers Construction Co. Ltd.[4], at p.475 according to which:

 

"The principle of “functus officio“ is intended to ensure the finality of hearings and disputes between the parties, with the goal of achieving certainty, legal security, and preventing the parties from being inconvenienced after the completion of their trial. It is also intended to ensure the orderly functioning of the judicial system and preventing its engagement with repeated disputes over matters already resolved, whereas numerous disputes that have yet to be resolved are waiting in line… against the background of these trends, one can understand the narrow and strict boundaries that are permitted by law for reopening a completed legal decision and giving a later decision in the framework thereof. "

 

9.         Apart from the considerations of the finality of the hearing, and protecting the individual litigant's interest that the matter concerning him will not return to be heard in court, there is also the basic principle of performance of judgments. This basic principle ensures that the legal proceeding will not be a pointless proceeding but rather that its result will actually be executed out, within the time period prescribed by the court. Without this basic component the entire legal proceeding is frustrated, especially when the state is charged with carrying out the judgment (in this context see the judgment of Justice A. Procaccia in the Noah [2] case, para. 17 of judgment).

10.       Examination of the State's claim in its application to reopen the proceedings, in which the ruling was delivered about eight months ago, shows that they contain nothing that justifies deviation from the principle of res judicata. The State’s arguments do not show any exceptional and unique considerations that would warrant an order for the exceptional measure of “renewal of hearing”. The State’s principal claim is that the political echelon wishes to reexamine the manner of implementing the policy declared by the State in the proceeding before us, and in a series of additional proceedings (including HCJ 9669/10 Abd el-Rahman Kassam Abd el-Rahman v. Minister of Defense [5] and HCJ 7891/07 Peace Now Movement v. Sh.A.L. Educational Enterprises v. Minister of Defense [6]). Attorney for the State did not point to even a single legal precedent that supported the State’s application to open the proceeding anew. Nor did the State point to any new circumstances that supported its application. The fact of there being a legal proceeding pending, in which the settlers’ claims are being clarified, was already known before the judgment was given (on 21 September 2011). As such, what reason can there be for  granting the exceptional relief of reopening a legal proceeding that was heard over a number of years, the central facts of which were not disputed by the State, in which order nisi was issued and in which the State’s undertaking to act in a particular matter was recorded?!.

            It is specifically in proceedings before the High Court of Justice that special importance attaches to the fulfillment of the State’s undertakings, and maintenance of the principle of res judicata. Accepting the State’s position, whereby the desire to reexamine policy constitutes grounds for opening a completed proceeding, could lead to grave results. Policy, by definition, is not static. Is it feasible that each and every time that there is a renewed examination of policy that the State will request to reopen proceedings that were concluded in a judgment. Indeed, a change in policy per se is not grounds for deviating from the rule of the res judicata. As noted above, the authority to reopen a completed legal proceeding, assuming it exists, is reserved for exceptional situations and circumstances. No circumstances of this nature were show to exist in the case before us, even if it does raise political, public and social questions of a complex nature.

11.       It bears emphasis that the fact that the judgment in the petition was given in the form of recording of the State's undertaking and that an absolute order wasn’t issued under it, is irrelevant in terms of res judicata and the clear and fundamental obligation to fulfill judgments. Indeed, in cases in which the state gives an undertaking to execute any act or to refrain from its execution, the court occasionally avoids issuing an operative order having consideration for mutual respect between the branches of power. However, once the undertaking is included in a judgment, there is an obligation to fulfill the judgment for all intents and purposes. Conceivably, the fact that no operative order was issued may influence the possibility of filing a proceeding for contempt of court, in the event of the non-performance of the judgment (see regarding the possibility of instituting contempt of court proceedings by reason of non-fulfillment of a declaratory order: HCJ 306/85 Kahane v. Knesset Chairman [7], at p. 485). This was not the question before us, and accordingly we will not address it.

12.       It is for these reasons that we have found no grounds for granting the State's application to reopen the proceeding after judgment was given. Notwithstanding our decision, and in order to enable the State to comply with the undertaking that it gave and which was anchored in the court's judgment, we extend the period determined in the judgment for executing the demolition orders for another 60 days (on the inherent authority vested in the court to extend periods determined in judgments, see HCJ 8887/06 Yusef Mussa abd-a–Rusak al-Nabut v. Minister of Defense [8] para. 11 of the decision of Justice M. Naor). Accordingly, an extension is given until 1 July 2012 for the execution of the demolition orders in accordance with the undertaking given by the State in its written response to the court on 1 May 2011 and in the course of the oral hearing on 21 September 2011.

13.       As an aside it bears mention that after the State's notification concerning its request to reopen the proceeding was filed, a number of applications to join were filed to the court by M.K Zehava Galon and the Meretz faction, by M.K Dr. Ahmad Tibi and the Arab Movement for Renewal - Ta'al, and on behalf of Guy Sagiv, David Abudraham, and Hanna Yifa Abudraham, three of the settlers in the buildings forming the subject of the petition. We have not found any reason for granting the applications to join. The claims of the Knesset Members and their factions have already been presented fully and completely by the petitioners and their joiner would add nothing to the hearing. As for the settlers, no reason was given for their application to join, and nor was any affidavit submitted with it. For that reason alone the application could have been dismissed. All the same, on the merits of the application too, the applicants did not explain why they were only applying to the court at this particular stage, and not during the years in which the petition was conducted, and it would seem that insofar as the arguments in their application were brief, they were presented in the hearing both by the State and by Respondent 5.

 

16.       In view of which the application is rejected, subject to that which was set forth in para. 12 above. The State will bear the Petitioners’ fees for the sum of NIS 15,000.

 

Given today, 15th of Iyyar 5772 (7 May 2012).

 

 

President                                 Justice                                                 Justice

 

 

 

Ministry of Palestinian Prisoners v. Minister of Defense

Case/docket number: 
HCJ 3368/10
Date Decided: 
Sunday, April 6, 2014
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

The Petitions request shortening the periods of detention prescribed in the security legislation in the West Bank, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the “Order”), such that they match the periods applicable to Israeli citizens in the West Bank and those of detentions prescribed in Israel.

 

The High Court of Justice (Justice E. Arbel, Justices Amit and Shoham concurring), issued a partial judgment as follows:

 

The High Court of Justice discussed the constitutional human right to liberty and its importance in a democratic system. It further discussed the right to due process before denying one’s liberty. The Court found it warranted that such person be able to respond and make arguments prior to restrictions on such a fundamental right. Additionally, the High Court of Justice discussed the public interests in exposing criminals and preventing crime, as well as thwarting security offenses. Therefore, it is necessary to strike a balance in the constant tension between security and protecting suspects’ rights that exists in the Israeli reality.

 

On the one hand, a proper legal procedure is an essential element in ensuring the proportionality and constitutionality of a detention for interrogation purposes. In principle, the suspect’s appearance before a judge should not be viewed as an obstacle but rather as a fundamental requirement for an effective and constitutional detention for interrogation purposes. This follows from the customary fundamental approach that judicial review is inherent to the detention process. Therefore it is necessary to adjust interrogation methods to interruptions that allow an effective and fair judicial procedure to take place. On the other hand, the security legislation was created in light of a complex security situation in a territory under belligerent occupation (occupatio bellica), where special security conditions dictate establishing arrangements that are different than those in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects.

 

During the course of the Petition’s proceedings, the Respondents took a far-reaching approach to shortening the periods of detention such that they would more closely match the detention periods in Israel. Such change would aim to reduce, as much as possible, the infringement of Palestinian detainees’ rights. Considering the distinctions inherent in the different conditions between Israel and the West Bank, and in light of the dramatic changes that were made, whose “on the ground” implementation must be examined over time, the High Court of Justice ruled that in terms of the maximum periods of pre-indictment detention of adults suspected of committing security offenses, and in the scope of offenses that are defined as security offenses, the Petitions were exhausted and therefore are to be dismissed. However, with respect to the periods of detention of minors, the periods of detention of adults suspected of other offenses, and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) the High Court of Justice ordered the Respondents to file an update notice.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

The Supreme Court sitting as the High Court of Justice

HCJ 3368/10

HCJ 4057/10

 

Before:                                                The Honorable Justice E. Arbel                                                                                  The Honorable Justice I. Amit                                                                                    The Honorable Justice U. Shoham

 

The Petitioners in HCJ 3368/10:   1.   The Ministry of Palestinian Prisoners

                                                      2.   Adv. Fahmi Shakirat

                                                      3.   Adv. Kamil Sabbagh

                                                      4.   Adv. Kareem Ajwa

 

The Petitioners in HCJ 4057/10    The Association for Civil Rights et al.

 

v.

 

The Respondent in HCJ 3368/10: 1.   The Minister of Defense

 

The Respondent in HCJ 3368/10

and in HCJ 4057/10                      2.   GOC Central Command, Commander of IDF Forces in the Region

 

                                                                        Petition to Grant an Order Nisi

 

Date of Session:                                           14th of Sivan, 5773 (May 23, 2013)

 

On behalf of the Petitioners

in HCJ 3368/10:                            Adv. S. Ben Natan

 

On behalf of the Petitioners

in HCJ 4057/10:                            Adv. L. Margalit

 

On behalf of the Respondents:     Adv. A. Helman

 

P A R T I A L   J U D G M E N T

 

Justice E. Arbel:

 

The Petitions before us, the hearings of which were united, address the question why not shorten the periods of detention which are prescribed in the security legislation in the Judea and Samaria region, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the "Security Provisions Order" or the "Order"), which came into effect on May 2, 2010. In the framework of the Petitions, this Court was requested to determine periods of detention which shall be shorter than those determined in the Security Provisions Order, as required under international law and in a manner that corresponds with the periods of detention that are customary in Israel.

 

 

Background

 

  1. Petitioner 1 in HCJ 3368/10 is the Ministry of Prisoners' Affairs in the Palestinian Authority, to which, under the security legislation, most of the detainees belong, and which attends to their welfare, their families, their legal representation and which engages lawyers who are members of the Israel and Palestinian Bar Associations. Petitioners 2-4 are lawyers who represent, on behalf of the Ministry of Prisoners' Affairs, suspects who are detainees under the security legislation. The Petitioners in HCJ 4057/10 are the Association for Civil Rights in Israel, "Yesh Din" – Volunteers for Human Rights and the Public Committee against Torture in Israel.

 

  1. The Petitioners filed their Petitions in light of the legal reality that existed at the time the Petitions were filed, pursuant to which the law applicable to Israeli citizens in the Judea and Samaria region (hereinafter: the "Region"), is different than the law applicable to Palestinians in the Region. In the framework of the Petitions, the said Petitioners requested to shorten the periods of detention prescribed in the Security Provisions Order such that they will be the equivalent to the periods applicable to Israeli citizens in the Region and will correspond to the periods of detention that are customary in Israel.

 

The Law that was in Effect at the Time the Petitions were Filed

 

  1. The period of the pre-indictment detention and the period of detention until the end of proceedings are grounded in Article C of Chapter C of the Security Provisions Order, which addresses the arrest and release of Palestinian detainees in the Region. Sections 31 and 32 of the Security Provisions Order prescribed the following with respect to detention prior to judicial review:

 

"31.   (a) A soldier may arrest, without an arrest warrant, any person violating the provisions of this order or if there is cause to suspect that he committed an offense under this order.

(b) A person arrested in accordance with sub-section (a) shall be transferred as soon as possible to a police station or place of detention as determined in this order.

(c)   An arrest warrant against a person arrested in accordance with sub-section (a) must be received within a reasonable time; if an arrest warrant is not given within 96 hours from the time of his arrest - he shall be released.

(d) The Commander of the IDF Forces in the Region may authorize any person to order the release of a person arrested in accordance with sub-section (a), provided that no arrest warrant pursuant to the provisions of this article was issued against such detainee.

 

32.     (a)   A police officer who has reasonable grounds to assume that a person violated the provisions of this order or who becomes aware that the investigation material that was gathered against the person who was arrested in accordance with sub-section 31(a) necessitates his continued detention, is authorized to issue a written arrest warrant for a period which shall not exceed eight days from the time of his arrest.

(b)   If an arrest warrant as noted was issued for a period shorter than eight days from the time of his arrest, a police officer may extend it in writing, from time to time, provided that the total periods of detention shall not exceed eight days from the time of his arrest."

 

With respect to the extension of the detention prior to the filing of an indictment, Sections 37 and 38 of the Security Provisions Order prescribe as follows:

 

"37.   A judge is authorized to grant an arrest warrant and to extend the duration of the detention, provided that the arrest warrant or the detention extension shall not be for a period exceeding thirty days at a time and that the total period of detention in accordance with this section shall not exceed ninety days.

 

38.     A Military Court of Appeals judge, may, at the request of the Region's legal counsel, order the extension of the detention of a person who was arrested under Section 37, or his renewed arrest, for a period which shall not exceed three months; if such an arrest warrant is granted for a period of less than three months, a Military Court of Appeals judge may extend it from time to time, provided that the total period of detention in accordance with this section shall not exceed three months."

 

With respect to the period of detention until the end of proceedings, Section 44 of the Security Provisions Order provides as follows:

 

"44.   The matter of a defendant who after being indicted was held under detention for the same indictment for a cumulative period that amounted to two years and whose trial in the court of first instance did not end with a verdict, shall be brought before a judge of the Military Court of Appeals.

The judge will hear the defendant's matter and order his release, conditionally or unconditionally, unless the judge believed that the circumstances of the matter, including the severity of the offense attributed to the defendant and his level of dangerousness, the fear of him fleeing justice and the reasons for the prolonging of proceedings, do not justify his release.

(b)   If the judge decides that the circumstances of the matter do not justify the defendant's release, the judge may instruct the defendant's continued detention for a period which shall not exceed six months, and may reorder this from time to time."

 

In accordance with that which is stated above, at the time the Petitions were filed with this Court, a suspect who was arrested under the Security Provisions Order could have been held under detention up to eight days without judicial review, up to 90 days before the filing of an indictment, and with court approval – up to six months. Additionally, a defendant could have, before his trial was completed, been held under open ended detention, subject to periodic extensions every six month, after two years from the commencement of his detention.

 

4.As opposed to the detention periods applicable to Palestinians in the Region, which are listed in the Security Provision Order, Israeli law prescribes detention for citizens of up to 24 hours (which can be extended up to 48 hours) until being brought before judicial review, detention of up to 30 days, which can be extended up to 75 days with the Attorney General's approval, before filing of an indictment, and detention of nine months, which can be periodically extended every three months, until the end of proceedings (Sections 17, 29, 30, 59, 60, 61 and 62 of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996). Additionally, certain exceptions are prescribed in the Israeli law with respect to suspects who are arrested for security offenses and with respect to minors who have been arrested (Criminal Procedure (Arrest of a Security Offense Suspect (Temporary Provision) Law, 5766-2006 and the Youth (Adjudication, Punishment and Methods of Treatment) Law 5731-1971).

 

The Claims of the Petitioners in HCJ 3368/10

 

5.The Petitioners claim, through Adv. Smadar Ben Natan, that the periods of detention prescribed in the Security Provisions Order that applies to the Palestinians in the Region are significantly longer than the standards prescribed for such matters both in international law and in the corresponding periods in Israel. They claim that these periods infringe the right to due process and the protection against arbitrary infringement of liberty which are granted to the residents of the Region, both by virtue of international law and by virtue of the fundamental principles of Israeli law. According to the Petitioners, although at hand are two different regions that are subject to different legal regimes, however both are under the control of the State of Israel.

 

6.The Petitioners further claim that the far-reaching changes that have occurred in Israeli law have hardly been reflected in the military legislation in the Region. They claim that experience shows that the extended periods of detention impact the manner in which arrest and interrogation procedures are conducted, such that they excessively infringe detainees' rights: de facto, the detention of detainees who are arrested in an initial arrest, is not requested to be extended before the lapse of the eight days allowed by the Security Provisions Order; many of them are not interrogated at all during entire days of this detention period and during subsequent detention periods; in many cases, detainees are released after four, five or even eight days without procedures being taken with respect thereto and without a cause of arrest against them being examined by a judge. According to the Petitioners, such an extended period of detention creates fertile ground for inappropriate treatment, for pressure and violence in the interrogation, such as the arrest of a relative without any real cause as a means of pressure.

 

7.The Petitioners add that the proceedings at the Military Courts after the filing of an indictment, are conducted ponderously: Most of the cases end with plea bargains since defendants know that if they chose to conduct a trial, they will stay in detention for a long and unlimited period of time; in the few cases that do go to trial, the periods of time between hearings are extended, the number of judges is small in relation to the volume of the cases, and this reality is created and encouraged by the unlimited detention until the end of proceedings.

 

8.The Petitioners further state that until the implementation of the Disengagement Plan, detainees from the Gaza Strip were subject to the provisions of the Security Provisions Order and that since the Disengagement detainees from the Gaza Strip are brought for detention extensions before the Israeli Courts, subject to Israeli law. According to them, the Israeli law also applies to the population of the settlers. According to the Petitioners, this reality constitutes a violation of equality among people – a legal apartheid. The Petitioners emphasize that not all of the offenses addressed in the Military Courts are security offenses, but the laws of detention apply to all of the detainees.

 

9.According to the Petitioners, the judicial review in the detention proceedings is an integral part of the suspect's right to due process. The very lengthy periods of detention are not justified due to security needs or due to circumstances that are unique to the Region. Therefore, they claim, there is a duty to act in accordance with similar standards in protecting human rights in the procedural criminal proceeding and they request to cancel Sections 31A, 32 and 44 of the Security Provisions Order, to shorten the periods of detention and to determine periods of detention that correspond to those that are customary in Israel.

 

The Claims of the Petitioners in HCJ 4057/10

 

10.These Petitioners, through Adv. Lila Margalit, also requested to amend the Security Provisions Order and they raise similar claims against the periods of detention prescribed in the Order. They claim that the periods of detention severely and gravely infringe the fundamental rights of the Palestinian residents of the Region, their right to liberty and their right to be free of arbitrary arrest, as well as their right to due process, dignity and equality, to appropriate means of supervision in order to ensure fair interrogation and in order to prevent torture. These detainees are subject, so they argue, to illegitimate methods of interrogation and to improper treatment on behalf of the interrogation authorities. These infringements derive, according to the Petitioners, both from the fact that their treatment is arbitrarily different than the treatment of Israelis living in the Region and from the duration of the periods of detention which in and of themselves are exaggerated. According to the Petitioners, these infringements are contrary to the provisions of the customary and contractual international law applicable in the Region and to the principles of Israeli public law which apply to Israeli authorities. They argue that these infringements do not serve an appropriate purpose, are not proportionate and are not reasonable. According to the Petitioners' opinion, it is hard to describe a more severe and grave infringement of human rights than the illegitimate situation in which two "categories" of people who are distinguished from each other based on their national origin, are living beside each other. Even regardless of the discrimination allegation, the Petitioners claim that the periods of detention in the Security Provisions Order are contrary to the principles of international law which apply to the Region and to the principles of public law that apply to any action of Israeli authorities. According to them, immediate and frequent judicial review of the detention of a suspect is a necessary condition of its reasonableness and proportionality; an extended detention without judicial review is not proportionate.

 

11.The Petitioners add that the military prosecution's claim that the judicial review of the detention is to be delayed in order to enable the "formulation of a reasonable suspicion", attests that the Order is used for making arbitrary arrests, without there being a reasonable suspicion against the detainee. Therefore, the Petitioners claim that the initial detention period of Palestinian detainees is meant to enable arresting people without there being a reasonable suspicion against them; to protect the interrogation authorities from the court's "intervention", to grant the interrogators "minimal time" to exhaust the interrogation, to avoid the "disturbance" thereof that is involved in presenting the suspect before the judge, and to avoid the logistical difficulties involved in applying immediate judicial review.

 

12.According to the Petitioners, the lack of distinction between minors and adults in the security legislation regarding the periods of detention and the lack of sufficient consideration of the principle of the child's best interest during arrests of minors, result in a disproportionate infringement of children's rights which are grounded in international law and which are recognized by Israeli Law. The basic premises that Palestinian minors are worthy of less protection than Israeli minors also living in the Region, is, in their opinion, illegitimate.

 

13.The Petitioners add that the judicial review of the detention is meant to ensure the justification, from the outset, of the continued denial of a person's liberty and that there is no place to delay it in order to enable the authorities to progress with their interrogation. Additionally, judicial review also has a role in supervising the manner the interrogation is conducted and serves as an important guarantee against the application of illegitimate means of pressure during interrogation and against the use of the detention itself to make the suspect feel completely disconnected from the outside world and subject to the mercy of his interrogators, while his dignity and his right to be silent are being infringed. According to the Petitioners, interrogation that is far from the court's watchful eye, could lead to the use of illegitimate means of interrogation which violate the detainee's dignity and even the integrity of his body, and therefore, in their opinion, constitutes a breach of the State's duty to prevent torture and inhumane treatment of detainees. The lack of judicial supervision is even more severely significant in cases in which the Palestinian detainee is prohibited from meeting with a lawyer, contrary to international law. According to the Petitioners, the concern regarding the use of illegitimate means of interrogation against Palestinians is not a  mere concern, and they refer to reports that were published by human rights organizations in 2007. According to them, purely logistic considerations or administrative difficulties cannot justify the infringement of a human's right to liberty, equality and dignity.

 

The Respondents' Response

 

14.The Respondents' response was presented by Adv. Aner Helman. Even since the letters of response to the Petitioners' approaches, prior to the filing of the Petition, the Respondents stated that the issue of shortening the periods of detention in the Region is being examined in the framework of in-depth staff work that has commenced long ago. It was further written that the security legislation is based on security and public order considerations and this is also true with respect the laws of detention, and that the differences between the law customary in the Region and the law customary in the State of Israel in this context derive from relevant security considerations.

 

15.In the response which was filed on the Respondents' behalf to this Court on January 9, 2010, the Respondents reiterated their claim that it is not for no reason that the periods of detention prescribed in the Security Provisions Order are different than those prescribed in Israeli law. According to the Respondents, the nature of an area that is held under belligerent occupation (occupatio bellica), even if long-term occupation, necessitates that the special security conditions prevailing therein dictate that different arrangements be prescribed than those customary in the occupying state.

 

16.For example, due to the security situation, the ability to move in the Region is limited, and at times, in light of security conditions which delay or prevent reaching the location, it is not possible to perform interrogations expeditiously, or even at all, in the area; some of the areas of the Region are under Palestinian control and it is not possible or very difficult to reach witnesses and suspects living there; in many cases, suspects who need to be interrogated find shelter in areas that are under Palestinian control making their interrogations and the interrogations of their accomplices who were arrested by the security forces, difficult; in most of the cases, the potential witnesses refuse to cooperate with the security forces, making interrogations difficult; in security interrogations the persons being interrogated acted out of nationalist and ideological motivation, and their interrogation is very difficult. Naturally, there is a minimal period of time that is required until their interrogations will produce initial evidence to support the intelligence information that has been received. At times, a certain interval is required between the time information is received and the time it can be used against the party being interrogated, since using intelligence information very soon after its receipt could "burn" the source of information and at times could even risk his life; in a large share of the security interrogations it is not possible to determine the location and time of the arrest in advance, resulting in the delay of the initial interrogation and it being more difficult; all of the detainees who are suspected of committing severe security offenses are transferred to one of four interrogation facilities which are located in Israel for their interrogation. At times, such transfer, in and of itself, requires not insignificant amounts of time. It is also necessary to exhaust the initial interrogation of the person being interrogated before bringing him before a judge, so as to avoid the possibility of him escaping to the Region; at times it is necessary to arrest many hundreds of people, like for example during the period of the "Defensive Shield" operation in 2002, and it is not possible to prepare to bring all of them before a judge during a short period of time.

 

17.The Respondents argue that these grounds require determining that it is appropriate to allow detaining a suspect for a reasonable period of time that is required in order to formulate initial evidentiary material prior to bringing him before a judge. The Respondents further state that international law does not limit the number of days that a person may be detained without judicial involvement, but rather expresses a principle pursuant to which the decision regarding the detention should be brought to a judge without delay.

 

18.Having said that, the Respondents notified that in recent years staff work has been conducted in the IDF and further on in the Ministry of Justice, by the Deputy Attorney General (Criminal Matters), together with the Deputy Attorney General (Special Assignments) and the Deputy Attorney General (Consultation), which is meant to examine the possibility of shortening the maximum periods of detention in the Region. The Respondents updated that in the framework of the staff work, a decision was reached that, considering the current security situation, at this time, it is possible to significantly shorten the maximum period of detention until bringing a detainee before a judge, however it is not appropriate to make the arrangement which shall be applicable in the Region in this matter the same as the arrangement which is applicable in Israel. The Respondents specified the manner of shortening the periods of detention:

 

19.With respect to offenses that are not security offenses, it was decided that, as a rule, the authority of an initial detention until presentation before a judge shall be for 48 hours; additionally, it will be possible to delay the presentation of the detainee before a judge for an additional 48 hours, as per the decision of an administrative authority, if there is a special cause, such as, for example, urgent acts of interrogation. It was further decided that the arrangement shall be re-examined upon the lapse of two years from the effective date of the amendment of the Order. As for detainees of security offenses, it was decided that the rule that shall be prescribed is that the initial period of detention until presentation before a judge shall be 96 hours at most, with an administrative party being able to extend such period by 48 additional hours, in cases in which the Head of the Interrogation Department at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in substantially prejudicing the interrogation. It was also decided that in very special circumstances it will be possible for an administrative party to extend the period of detention until being brought before a judge by 48 additional hours, beyond the above said 11(sic.) hours (six days), in cases in which the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in harming the performance of an essential act of interrogation that is meant to prevent harm in human lives. Considering the concern that was raised by security entities regarding the operational implications of these modifications, it was determined that this arrangement would be examined upon the lapse of two years from the date the amendment to the Order became effective.

 

20.It was further decided that the extension of an initial detention by a judge will not exceed 20 days and that it will be possible to re-extend the detention for additional periods which shall not exceed 15 additional days each. The extension of detention prior to the filing of an indictment which exceed 60 days shall be subject to the approval of a senior legal authority in the Region.

 

21.The Respondents added that in the framework of the staff work it was decided to add a provision to the Order pursuant to which if a person was arrested and his interrogation ended he shall be released from detention, however, if the prosecutor declared that they are about to file an indictment against him and the court was convinced that there is prima facie cause to request his detention until the end of proceedings, the judge may extend the detention on this  ground for a period which shall not exceed eight days. It was also decided that at the initial stage the period of detention until the beginning of trial shall be 60 days, and that the possibility of shortening this period to 30 days shall be examined upon the lapse of two years.

 

22.The Respondents further updated that it was decided to amend Section 44 of the Security Provisions Order so that with respect to offenses that are not security offenses, the period stated for holding the first hearing before a judge in the matter of a detainee who is under detention until the end of proceedings shall be one year from the date the indictment was filed. With respect to security offenses, the period currently stated in the Order – two years – shall remain in effect, and this matter shall also be examined upon the lapse of two years from the time the arrangement shall become effective. The Respondents estimated that the required adjustments to the modifications shall last approximately six to nine months and that the Order shall be amended accordingly, immediately thereafter.

 

23.The Respondents requested to dismiss in limine the relief requested in HCJ 4057/10 to make the periods of detention of minors in the Region the same as the periods of detention of minors in Israel, and claimed that the Petitioners did not exhaust the proceedings in this matter. According to them, this matter should not be mixed with the matter of the detention of adults in the Region. According to the Respondents this is a "premature petition" since it was already decided to conduct staff work on this matter as well.

 

Hearing of the Petititons and Update Notice

 

24.On January 12, 2011, a hearing took place in this Court before President D. Beinisch and Justices N. Hendel and I. Amit. At the end of the hearing it was decided that within five months the Respondents would file an update notice together with a draft of the Order which shall be issued in accordance with the principles that were formulated. The Bench of Judges even instructed the Respondents to consider its remarks when drafting the Order, especially with respect to the duration of the period of time until first bringing a detainee before a judge and with respect to the period of detention until the end of proceedings after an indictment has been filed.

 

25.On June 1, 2011, the Respondents filed an update notice, and according thereto, in an additional meeting that was held following the court hearing, it was decided to shorten the period until a detainee, who is detained until the end of proceedings for security offense, is brought before a judge, from two years to 18 months. It was further decided that it is vital that the manner of the actual implementation of the arrangement which the staff work decided upon with respect to the maximum period of detention until bringing a suspect before a judge, be examined for a period of approximately two years, before an additional re-examination of the matter. In the framework of this notice, the Respondents added that it is essential, prior to actually shortening the detention periods in the Region, to examine the developments that were scheduled to occur in the Region in September 2011 onwards, in light of the Palestinian Authority's notice that it intends to approach the United Nations General Assembly this month with a request to recognize the "State of Palestine". The Respondents updated that the staff work has not yet been completed and that they expect the Order to be amended during the month of January, 2012.

 

26.Both the Petitioners in HCJ 3368/10 and the Petitioners in HCJ 4057/10 responded to that stated in the update notice. According to them, the shortening of the detention period that the Respondents declared is insignificant and cannot cure the severe defects and infringement of rights that are embodied in the security legislation in the Region. According to the Petitioners, the changes that were made shall not have any practical impact on the arrest procedures of Palestinians who are residents of the Region and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement in the infringement of the right to liberty, of due process and of the presumption of innocence. The Petitioners reiterated their claim that judicial review is an integral part of the arrest process and that there is no justification to delay the judicial review for such an extended period of time. They argued that the initial detention period and the detention until the end of proceedings period constitute an arbitrary infringement of the right to liberty and therefore they insist on their petitions to issue an order nisi in the Petitions and to instruct the Military Commander in the Region to determine periods of detention that correspond with international standards and with those that are customary in Israel. The Petitioners further claimed that there is no reason not to amend the Order due to uncertain future developments.

 

27.The Petitioners in HCJ 4057/10 added that the list of security offenses that is included in the Order spans over dozens of sections and includes offenses such as conducting a procession or an unlicensed meeting, waving a flag without a permit, printing "material which has political significance" without a license from the Military Commander, and the like. The list also includes many "public order" offenses such as throwing objects, disturbing a soldier, breaching curfew or a closed military zone order and the like, thus making the arrangement that relates to offenses that are not security offenses predominantly theoretical. In their opinion, the appropriate criterion for determining the periods of detention is the timeframe applicable to Israelis who also live in the Region. The Petitioners also drew attention to the inconsistencies between the Respondents' notice and the draft of the Order. According to them, the amendment of the Order should not be avoided due to a concern regarding unusual events.

 

Additional Update Notices

 

28.On November 22, 2011, the Respondents filed an additional update notice,  according to which, it was told in meetings that were held at the Deputy Attorney General (Criminal Matters), that the IDF has completed the staff work examining adding the necessary staff positions at the military courts and at the Judea and Samaria Region Prosecution in order to shorten the detention period in the Region and that a decision was even already reached to add the new necessary staff positions, subject to the amendment to the Order becoming effective and to the time required for the procedure of selecting and appointing new judges to the court. It was also clarified that due to a dispute between the Ministry of Finance and the Ministry of Public Security regarding the source of the budget, there is still no budgetary solution for the Police and Prison Service's needs for implementing the staff work and that a few additional months shall be required after such a solution is found in order to recruit and train personnel and purchase and receive additional vehicles. On December 22, 2011, the Respondents filed an additional update notice informing that the dispute regarding the budget source was still unresolved, and this is what they informed on January 16, 2012, as well.

 

29.On February 6, 2012, the Respondents filed an additional update notice that the budget dispute regarding financing the detention periods in the Region was resolved. The Respondents further updated that on December 2, 2012 (sic.), the Commander of the IDF Forces in the Region signed the Security Provisions Order (Amendment no. 16) (Judea and Samaria) (no. 1685) 5772-2012 (hereinafter: the "Amending Order"), which shortened the period of detention in the Region in accordance with the conclusions of the staff work that had been done, and prescribed that its provisions shall become effective gradually, such that the last changes shall become effective on August 1, 2012.

 

The Petitioners' Response

 

30.The Petitioners in HCJ 3368/10 welcomed the amendments made to the Amending Order. However they claimed that a review of the language of the Amending Order reveals that there are significant differences between the changes declared in the Respondents' response and the actual language of the Amending Order. For example, the Petitioners noted that a security offenses detainee can be held under detention for two periods of 96 hours, i.e. eight days, and only be brought before a judge upon the completion thereof, and the same is true in the case of a non-security offenses detainee. The Petitioners claimed that the shortening of the detention period that was applied is insignificant and does not cure the severe infringement of the detainees' rights under the security legislation in the Region. They claimed that in the case of security offenses, which are the majority of the offenses that are addressed in the Region, the Amending Order does not, in effect, shorten the period of detention before initial judicial review. The Petitioners added that the Amending Order shortens the period of detention until the end of proceedings in security offenses in an insignificant manner from two years to a year and a half, which can be extended indefinitely, and that no change was made with respect to minors and that there is no distinction between a minor and an adult with respect to the detention laws. According to the Petitioners, these changes shall hardly have any practical impact on the procedures of detaining the Region's residents and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement with respect to the infringement of the right to liberty, the right to due process and the presumption of innocence. The Petitioners mentioned with respect to the initial detention period, that judicial review is an integral part of the arrest process and that this is the stage where it is necessary to present the court with only reasonable suspicion which is meant to exist upon the actual arrest. Therefore, in their opinion, there is no justification for delaying the judicial review for such a long period.  Interrogation difficulties should be presented before the judge to justify the extension of the detention, including in security offenses.

 

31.The Petitioners further claimed that the European Court of Human Rights ruled that an initial detention period of four days without judicial review breaches the right to be free of arbitrary detention. Therefore they are of the opinion that a period of detention of four to eight days before judicial review constitutes an arbitrary infringement of the right to liberty in violation of the Basic Law: Human Dignity and Liberty, and is illegal. According to them, a period of detention of a year and a half infringes the defendant's presumption of innocence and constitutes an arbitrary infringement of his right to liberty, since it is based only on prima facie evidence and amounts to an infringement of his right to a fair trial, as it constitutes a negative incentive to conduct trials and examine the charge.

 

32.The Petitioners in HCJ 4057/12 also responded to the Respondents' update notice. They also welcomed the Respondents' notice regarding the amendments made to the Amending Order but claimed that they cannot cure the flaw of illegality embedded therein, since even after the amendment, the Palestinian residents of the Region will continue to be subject to exaggerated and discriminating periods of detention which severely infringe their rights. The Petitioners emphasized again that immediate and frequent judicial review of arrest for interrogation purposes is a necessary condition for the reasonableness, proportionality and legality of the detention and that in the absence thereof, it is not possible to prevent arbitrary detention, it is not possible to protect the rights of the suspect and it is not possible to ensure a fair criminal procedure. The Petitioners reiterated their argument that an arrest that is not arbitrary is meant, to begin with, to be based on a reasonable suspicion and that the judicial review constitutes a part of the formulation of the legality thereof. According to them, the special difficulties that characterize the interrogations in the Territories are not at all relevant to examining the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge. According to the Petitioners, the Respondents did not provide grounds which could justify the discriminating policy also with respect to the other periods of detention. The Petitioners stated that the Respondents did not refer to minors in their notice and according to them, the list of security offenses is still "all inclusive", and a situation in which an Israeli detainee who lives in the Region and is suspected of a security offense must be brought before a judge within 24 hours while a Palestinian must be brought before a judge only after an a-priori period of four days, cannot be justified.

 

In light of President D. Beinisch's retirement, President A. Grunis appointed me to hear the Petition on March 14, 2012.

 

Additional Hearing of the Petition

 

33.On April 23, 2012, we held an additional hearing of the Petition, in which the Petitioners presented their claims regarding four matters: the time until bringing a detainee before a judge, the detention of minors, the definition of security offenses pursuant to the Order, and the period of the extension of a detention until the end of proceedings. At the beginning of the hearing, the attorney for the Respondents filed the Amending Order with respect to Section 31 of the Order. According to the amendment, a detention prior to being brought before a judge in special circumstances was limited to a period which shall not exceed 96 hours from the time the suspect was arrested, and can, in special circumstances, specified in the Order, be repeatedly extended by two additional days at a time, in accordance with approval by very senior echelons.

 

34.With regard to minors, it was discovered in the hearing that a new Security Provisions Order was meant to come into effect in August, 2012, and the age of minors in the Region was also recently changed to 18 years of age (instead of the previous 16 years). The Respondents requested to monitor the change for one year from the time it became effective, to monitor the wardens' training procedures, and to consider the state of affairs following the lapse of such period. As such, we ruled that the Respondents shall file update notices with respect to the results of the change by no later than December 1, 2012.

 

35.As for the matter of the offenses defined as security offenses, we ruled in a decision at the end of the hearing that the matter was not raised in the Petitions and an order nisi was not requested with respect thereto, other than in the framework of the responses to the Respondents' update notices. Having said that, we found it appropriate that the Respondents consider our remarks, especially the question whether it is appropriate to relate to the security offenses as one assemblage rather than excluding some of them from the definition of security offenses that appear in the Third Addendum of the Security Provisions Order.

 

36.With respect to the detention until the end of proceedings, the Respondents' attorney notified that it was decided to shorten the period of detention to 18 months in security offenses. Since we were of the opinion that this is still a lengthy period and it is appropriate that the matter be re-examined, we instructed that this be addressed in the framework of the update notice that was to be filed. We also ruled that after filing the update notice, the Petitioners would be able to respond thereto, and that we would thereafter decide regarding the further treatment of the Petitions.

 

Additional Update Notice

37.On December 16, 2012, the Respondents filed an additional update notice. First of all, the Respondents informed that the review of the results of the shortening of the periods of detention in the Region indicated that by dedicating effort the Respondents have managed to implement the shortened periods of detention as prescribed in the Amending Order. The Respondents added that following the remarks of this Court in the hearing and the decision it issued at the end of the hearing, the Commander of the IDF Forces in the Region amended the Security Provisions Order regarding the detention of minors, the definition of the security offenses and the period of extension of detention until the end of proceedings:

 

38.With respect to the detention of minors, the Respondents updated that it was decided to act to amend the security legislation and to prescribe special periods of detention until being brought before a judge and until the end of proceedings, for minors in the Region, which as a rule, shall be shorter than the corresponding periods of detention for adults. In this context, the Respondents informed that on November 28, 2012, the Commander of the IDF Forces in the Region signed two new amendments to the Security Provisions Order: Security Provisions Order (Amendment no. 25) (Judea and Samaria) (no. 1711), 5772-2012 (hereinafter: "Order no. 1711"). The Respondents noted that according to Order no. 1711, as from April 2, 2013, the maximum period of detention of a "youth", as defined in the Security Provisions Order, i.e. a person who is at least 12 years but not yet 14 years old, until being brought before a judge shall be 24 hours from the time of arrest, with a possibility of an additional 24 hours extension due to an urgent act of interrogation. It was decided that this period shall apply to the detention of a "youth" for both security offenses and offenses which are not security offenses. Additionally, the Respondents noted that beginning from such time, the maximum period of detention of a "young adult", as defined in the Security Provisions Order, i.e. a person who is at least 14 years old but not yet 16 years old, until being brought before a judge shall be 48 hours from the time of the arrest, with a possibility of an additional 48 hours extension due to an urgent act of interrogation. It was decided that this maximum period of detention shall apply to the detention of a "young adult" for both security offenses and offenses that are not security offenses. The Respondents further noted that such maximum period of detention applies also to minors over the age of 16 and to adults in the Region who are detained for offenses that are not security offenses.

 

39.According to the Respondents this is a very significant shortening of the maximum period of detention until being brought before a judge for all suspects aged 12-14 and for suspects of security offenses aged 14-16, compared to the periods of detention until being brought before a judge for adult suspects for the said offenses, which were also significantly shortened in the framework of the Amending Order. The Respondents added that the maximum periods of detention until being brought before a judge which apply to adults shall continue to apply with respect to minors over the age of 14 for offenses which are not security offenses, and with respect to minors over the age of 16 for security offenses, as stated in the Amending Order.

 

40.With respect to the period of detention until the end of proceedings for minors in the Region, the Respondents further stated that Order no. 1711 prescribes that the period of detention until the end of proceedings for a minor, i.e. any defendant who is less than 18 years old, shall be only one year. Additionally, the detention of minors until the end of proceedings can be extended by a Military Court of Appeals judge, upon the lapse of a year of detention, for a period which shall not exceed three months, which the judge may re-order. It was noted that such provision applies with respect to minors who are accused of security offenses and offenses which are not security offenses.

 

41.As for the definition of security offenses, the Respondents updated that in the framework of the Security Provisions Order (Amendment no. 26) (Judea and Samaria) (no. 1712), 5772-2012 (hereinafter: "Order no. 1712"), approximately a third of the security offenses that were previously listed were removed from the Third Addendum of the Security Provisions Order which defines "Security Offenses", and one offense (offense under Section 222 of the Security Provisions Order) was added, and therefore, Order no. 1712 actually resulted in the significant shortening of the maximum periods of detention of those who are suspected and accused of the many offenses that were removed from the Third Addendum. The Respondents noted that there was a significant change even in the matter of adults since approximately a third of the offenses that were previously defined as "security offenses" are no longer defined as such, and therefore the period of detention until the end of proceedings for anyone suspected of committing them shall be 12 months rather than 18 months. The Respondents claim that the implementation of such significant changes in the various periods of detention necessitates granting an opportunity, prior to considering additional changes, to examine the implications thereof on the law enforcement system in the Region and on its ability to function. Therefore, it was decided that at this time it is inappropriate to change the periods of detention until the end of proceedings for adults in the Region. The Respondents were of the opinion that in doing so, a worthy balance was struck between all of the relevant considerations, while granting obvious preference to the rights of minor defendants over those of the adults.

 

The Petitioners' Responses

 

42.The Petitioners in HCJ 4057/10 responded to the Update Notice. They welcomed the significant shortening of the period of detention applying to minors aged 12-14 and the additional amendments of which the Respondents informed. However, in their opinion, the Petition has not yet been exhausted since even after the amendments, the periods of detention applicable to Palestinians in the Territories, minors and adults alike, remain exaggerated, discriminating and contrary to the law. According to them, to this day, the Respondents have still not raised any legitimate reason which could justify the continued severe discrimination in this matter between Palestinians and Israelis in the Region. According to the Petitioners, even after the amendments to the Order, it is possible to hold a suspect up to eight days without any judicial review, if he is suspected of an offense which is classified as a security offense, including offenses such as throwing rocks (including towards property) and organizing a protest without a license. Such an extended period of detention also applies to minors who are 16 years old or older. In offenses that are not security offenses, the bringing of a suspect before a judge can be delayed up to 96 hours, even when at hand is a minor who is 14 or 15 years old. The Petitioners mentioned that an arrest is meant to be based, to begin with, on a reasonable suspicion, and that the judicial review constitutes part of the formulation of the legality of the initial detention regardless of the severity of the offense. According to them, the difficulties that characterize the interrogations in the Territories are not relevant to the examination of the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge.

 

43.As for minors, the Petitioners claimed that even after the amendment of the Order it will still be possible to hold a minor aged 12 or 13 for an entire day until bringing him before a judge, or for two days if there is a need to perform an urgent act of interrogation, and a minor 14-15 years old can even be held under detention up to 96 hours for ordinary offenses, prior to being brought before a judge. This, as opposed to an Israeli 12 or 13 year old minor from the Region who must be brought before a judge within 12 hours or 24 hours in certain cases. The Petitioners added that even after the amendment, the prohibition against holding Israeli minors who live in the Region under detention until the end of proceedings, is not applied to minors under the age of 14. Additionally, a longer period of detention until the end of proceedings shall continue to apply to minors, a year as opposed to six months, and this period can be extended for longer periods of time, three months, compared to 45 days at a time under Israeli law. The Petitioners complained that the extension of a detention of a Palestinian suspect under the age of 14 or until his release without indictment, was not shortened.

 

44.The Petitioners added that despite the removal of approximately a third of the security offenses from the Third Addendum of the Order, it still includes a wide variety of offenses that do not justify lengthy periods of detention, such as, for example, the throwing of objects, including throwing rocks towards property, organizing protest without a license and the breach of a closed military zone order. According to them, leaving these offenses in the list was meant to serve considerations that are totally irrelevant to the interrogation needs, such as deterrence considerations. At the very least, leaving them in the list does not comply with the proportionality criterion. According to the Petitioners, there is no justification to hold Palestinian detainees who are suspected of security offenses up to 96 hours without judicial review, when according to the Amending Order judicial review can be delayed for up to six or eight days at terms that are much more lenient than those that are required for the detention of Israelis living in the Region and who are suspected of severe security offense. In their opinion, there is also no justification to set a longer period of time for the period of detention until the end of proceedings in security offenses. Determining a period of detention until the end of proceedings that is too long will result, in the Petitioners' opinion, in disproportionate infringement of the defendant's right to liberty and prejudices the fairness of the criminal process, particularly when the extended period is automatically pre-determined and does not require special approval. In their opinion, the expectation of lengthy detention could result in defendants admitting to that which is attributed to them only to avoid an extended stay in jail. According to them, the lack of stringent limits on the length of a trial allows a delay of justice which could even interfere with the discovery of the truth. The Petitioners stated that the matter of the definition of the security offenses did not appear in the Petition because the special periods of detention for security offenses were first prescribed by the Respondents in their response to the Petition. Therefore, the legality and the proportionality of the duration of the periods of detention for security offenses as well as for other offenses, constitute, so they argue, an integral part of the reliefs that were requested in the Petition to begin with.

 

45.The Petitioners reiterated their objections regarding the period of detention until the end of proceedings that applies to adults in security offenses, which was not shortened in the Amending Order, as well as with respect to holding a suspect up to eight days until being brought before a judge if detained in a "combat arrest", as stated in Section 33 of the Security Provisions Order. The Petitioners emphasized their claim that the proper criterion to examine the reasonableness and proportionality of the periods of detention that apply to the Palestinian residents of the Territories is the timeframe that applies to Israelis also living in the Region.

 

46.The Petitioners in HCJ 3368/10 notified that they join that which was stated in the response of the Petitioners in HCJ 4057/10. According to them, the differences between the legislation in the Region and the legislation in Israel will remain unfathomable even after the changes that were made to the Order, which in and of themselves are welcome.

 

An Additional Hearing of the Petition

 

47.In a hearing we held on May 23, 2013, the parties reiterated their main arguments: The Petitioners claimed that the amendments made in the Amending Order are not sufficient and that they maintain their petitions. The attorney representing the State requested to separate the matter of the detention of minors from the Petitions being addressed and requested to enable the system to examine the implementation of the amendments to the Order over a reasonable period of time in order to ensure that "things work" and adopt educated decisions. The attorney representing the State stated that upon the lapse of the period, the periods of detention will be re-examined, as the system does not rest on its laurels.

 

48.On October 29, 2013, the Respondents filed an additional update notice. The Respondents informed that on September 30, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 35) (Judea and Samaria) (no. 1727) (hereinafter: "Order no. 1727"), which came into effect on the date of the signing thereof. According to Order no. 1727, the provisions of Article G, Chapter E of the Security Provisions Order, including, the age of minors in the Region, shall from now on be "permanent provisions". The Respondents also updated that since the last hearing of the Petitions, and further to additional staff work, on September 1, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 34) (Judea and Samaria) (no. 1726), 5773-2013 (hereinafter: "Order no. 1726"), which came into effect on October 6, 2013. Order no. 1726 introduced an additional significant shortening of the periods of judicial detention of minors for interrogation purposes, resulting in a Military Court judge being able to order the arrest of a minor for interrogation purposes for a period of 15 days and extend the detention for additional periods which shall not exceed 10 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 40 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 40 days, for additional periods which shall not exceed 90 days each.

 

49.Additionally, Order no. 1726 prescribed periods of judicial detention for interrogation purposes for adults that are similar to those applicable in Israel, such that a Military Court judge may order the arrest of an adult suspect for interrogation purposes for a period of 20 days and extend the period for additional periods which shall not exceed 15 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 75 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 75 days, for additional periods which shall not exceed 90 days each.

 

50.According to the Respondents, it is evident that following the coming into force of Order no. 1726, the maximum judicial detention periods of adults for interrogation purposes in the Region are now identical to the periods of detention for interrogation purposes of adults in Israel, mutatis mutandis, except for two matters: one, the maximum period of the first judicial detention order (20 days in the Region compared to 15 in Israel), and two, the requirement to receive the approval of the Attorney General for the request to extend the detention for interrogation purposes beyond 30 days in Israel, compared to the approval of the Military Advocate General, which is only required beyond 75 days in the Region. Considering the previous update notices and this present one, the Respondents are of the opinion that the Petitions have exhausted themselves and should be dismissed.

 

51.On December 30, 2013, the Petitioners in HCJ 4057/10 filed a response to the update notice. According to them, the notice reflects the flawed approach which is guiding the Respondents, who on the one hand prescribed discriminating and exaggerated periods of detention for Palestinians and on the other hand, ostensibly adopted the principle of equality. The Petitioners welcome the Respondents' decision to distinguish between minors and adults with respect to the periods of judicial detention for interrogation purposes and to somewhat shorten the periods applicable to Palestinian minors, however object to the arbitrary determination of longer periods of detention for Palestinian minors as opposed to the periods of detention prescribed for Israeli minors living in the Region and compare them. The Petitioners add that the differences between to the periods of judicial detention for adults are not solely "technical", since while as a rule an Israeli adult suspect in the Region cannot be detained for more than 30 days with respect to the same event, a Palestinian adult suspect can be detained for 75 days and his detention can even be extended without adopting the basic rule pursuant to which upon the lapse of 75 days, "he shall be released from detention, with or without bail". According to the Petitioners, the Respondents have not yet, to this day, provided any legal reasons for the discriminating periods of detention which are imposed upon the Palestinians.

 

Discussion and Ruling

 

52.A person's right to liberty is a constitutional right that is grounded in Section 5 of the Basic Law: Human Dignity and Liberty, where it is prescribed that: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, detention, or any other way." The importance and centrality of the right to liberty in a democratic regime also stems from the implications of denying the liberty for the injured person and for the damage that could be caused thereto as a result thereof. The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty (see HCJ 2605/05 The Law and Business Academic Center v. The Minister of Finance, paragraph 25 of President D. Beinisch's decision (November 19, 2009)). The right to due process prior to a person's liberty being denied derives from the right to liberty, and it is even warranted that he will be given the opportunity to respond and voice his arguments prior to this fundamental right being denied (LCrimA 837/12 The State of Israel v. Gusakov, paragraph 29 (November 20, 2012)). On the other hand, it is in the public interest to expose criminals and prevent crime, and certainly to try and thwart security offenses. Therefore, it is necessary to strike a balance in the constant tension that exists in the Israeli reality, between security and protecting the rights of someone suspected of committing an offense. This tension emerges also in the matter before us – the periods of detention of Palestinians who are residents of the Region.

 

53.As mentioned, the purpose of the laws of detention, including in the Region, is to strike a balance between the public interest of exposing and preventing crime and protecting the rights of the suspect. One must remember that the Region has unique characteristics which derive from the security reality and the essence of the military rule applicable there, from the security needs and from the difficulties of enforcing the law, in light of the absence of Israeli control in part of the area. There is no dispute that constant judicial review of the process of arrest for interrogation purposes is important for the protection of human rights, however the continuity of the interrogation is important for the purpose of realizing the objective of the interrogation: exposing the truth. Exposing the truth quickly and efficiently is especially important when the security of the State and its citizens are at stake.

 

54.The dilemma, therefore, is clear: on the one hand, the conduct of a proper legal procedure is an essential element to secure the proportionality and constitutionality of an arrest for interrogation purposes, and in principle, the appearance of the suspect before a judge should not be regarded as an obstacle, but rather as a fundamental condition for an effective and constitutional arrest for interrogation purposes (CHR 8823/07 Anonymous v. The State of Israel, paragraph 32 (February 11, 2010)). This follows from the customary fundamental approach that judicial involvement is an integral part of the arrest process. It is not "external" judicial review of the arrest, but rather an integral part of the formulation of the arrest itself. This is a constitutional approach that views the judicial involvement in the arrest procedure an essential part of the protection of individual liberties:

 

"The judicial involvement is the barricade against arbitrariness: it is warranted from the principle of the rule of law (see Brogan v. United Kingdom (1988) 11 EHRR 117, 134). It guarantees that the delicate balance between individual liberties and the security of the general public – a balance that lies at the basis of the laws of arrest – shall be preserved (see ADA10/94 Anonymous v. The Minister of Defense, IsrSC 53(1) 97, 105)." (HCJ 3239/02 Marav v. Commander of IDF Forces in Judea and Samaria, IsrSC 54(2) 349, 368 (2003))."

 

The meaning of this is that it is necessary to adjust the interrogation methods to the need to interrupt them at a certain stage of the interrogation in order to allow an effective and fair judicial procedure to take place. An interrogation that takes place over a period of time, when the person being interrogated is in detention and cannot appear before the court and voice what he has to say, could result in disproportionate infringement of human dignity and liberty.

 

On the other hand, we cannot ignore the fact that the security legislation which is the subject of our discussion was created in light of a complex security situation in a territory that is occupied under belligerent occupation (occupatio bellica), that the special security conditions applicable there dictate the determination of arrangements that are different than those that are customary in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects. In this context, it is important to remember, for example, as the Respondents have clarified, that due to the security situation, the ability to move in the Region is limited and that part of the area is under Palestinian control. The security conditions could, therefore, prevent, or delay, the interrogation parties from reaching the arena, and could make the collection of testimony and evidence more difficult. Additionally, according to the Respondents, potential witnesses do not cooperate with the interrogation parties, either due to their sympathy towards the suspects or due to their hostility towards the State of Israel. According to the Respondents this also creates genuine difficulty in interrogations and greatly delays the ability to formulate initial evidence against the suspect. Furthermore, intelligence material that was received has to be used carefully and often it is necessary to wait before using it so as not to give away the source of the information or god forbid risk his life. Additionally, there is an enhanced concern in the Region of fleeing into areas that are under the Palestinian Authority's control, such that it will not be possible re-arrest such person who was released from detention. In such conditions, the interrogation of the detainees is complicated and complex and at times a longer period of time is necessary to exhaust the interrogation before bringing the detainee before a judge.

 

55.As mentioned, the Petitioners claim that the balance between the need to maintain the security of the general public and the State and the need to protect human rights, dignity and liberty, which is reflected in the Security Provisions Order is not the proper balance even after the amendment thereof, while the Respondents request to examine the implementation of that which is stated in the Amending Order before being able to reach any conclusions on the matter. This is the state of affairs in the case at hand. In any case, it appears that the parties to the Petition share the opinion that judicial review is an essential tool for protecting the legality and propriety of the arrest and share the aspiration to shorten the periods of detention of the Palestinian residents of the Region as much as possible and to apply statutory arrangements thereon which are as similar as possible to those that are customary in Israel, in terms of the degree of protection they provide to the suspect's or defendant's rights. This was also the spirit of what was expressed in this Court, when the matter was presented before it in the past. The Supreme Court expressed its opinion and ruled that:

 

"It is time to apply statutory arrangements in the Military Courts which are similar to those prescribed in the Arrests Law in Israel, in order to protect the rights of defendants; all subject to the unique characteristics of the Region. This is the case with respect to dictating periods of a detention from the time of filing an indictment and until the commencement of the trial (Section 60 of the Arrests Law which does not have a corresponding statutory arrangement in the Region); with respect to limiting the period of the detention between the end of interrogation and the filing of an indictment (Section 17(d) of the Arrests Law, a matter which also does not have a corresponding statutory arrangement in the Region); and with respect to shortening the periods of detention prescribed in the security legislation that applies in the Region, as they are significantly longer than those prescribed in the Arrests Law in Israel" (HCJ 10720/06 Farid v. The Military Court of Appeals (February 11, 2007).

 

56.Indeed, a consequence of this aspiration is the changes that were made to the arrangements of arrests of Palestinian detainees who are residents of the Region. During the course of the Petition, the Respondents took far reaching measures with respect to shortening the said periods of detention, so as to make them more similar to the periods of detention customary in Israel. For the sake of good order and in order to clarify the matter, I shall present the changes that were made to the Security Provisions Order since the Petitions were filed, in the following table:

 

 

 

 

Previous Law

New Law (the Amending Order)

Initial detention until being brought before a judge for offenses that are not security offenses

Eight days

Minors:

12-14 year olds: 24 hours

14-18 year olds: 48 hours

Adults:

48 hours + an option to extend up to 96 hours

Initial  detention until being brought before a judge for security offenses

Eight days

Minors:

12-14 year olds: 24 hours

14-16 year olds: 48 hours

16-18 year olds: 96 hours

Adults:

96 hours + an option to extend up to 8 days

Judicial  detention for interrogation purposes prior to filing an indictment

30 days

  • Can be extended for additional periods which shall not exceed 30 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 90 days.
  • Can be extended beyond the 90 days for three additional months.

Minors: 15 days

  • Can be extended for additional periods of up to 10 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 40 days.
  • Can be extended beyond the 40 days for additional periods which shall not exceed 90 days each.

 

Adults: 20 days

  • Can be extended for periods of up to 15 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 75 days.
  • Can be extended beyond the 75 days for additional periods which shall not exceed 90 days each.

"Bridge Detention" for the purpose of filing an indictment

Unlimited

Eight days

Detention after filing indictment and before the commencement of the trial

Unlimited

60 days

Detention until the end of proceedings in offenses that are not security offenses

Two years

  • Extensions of up to six months each.

Minors: A year

  • Extensions of up to three months each.

Adults: A year

  • Extensions of up to six months each.

Detention until the end of proceedings in security offenses

Two years

  • Extensions of up to six months each.

Minors: A year

  • Extensions of up to three months each.

Adults: 18 months

  • Extensions of up to six months each.
 

 

 

 

57.The difference between the new law (the Amending Order) and the law existing in Israel can be seen in the table below:

 

 

Initial detention until being brought before a judge

Detention before indictment

Detention until end of proceedings

"Bridge  Detention " for purpose of filing an indictment

In the Region – Offenses that are not security offenses

48-96 hours

20-75 days

A year + extensions of up to six months each.

Eight days

In Israel - Offenses that are not security offenses

24-48 hours

15-30 days

Nine months + extensions of up to three months each.

Five days

In the Region – Security offenses

96 hours – 8 days

20-75 days

18 months + extensions of up to six months each.

Eight days

In Israel – Security offenses

24-96 hours

20-35 days

Nine months + extensions of up to three months each.

Five days

Minors in the Region

12-14 years old

24-48 hours

15-40 days

Security offenses:

20-75 days

A year

Eight days

Minors in the Region

14-16 years old

48-96 hours

Offenses that are not security offenses:

15-40 days

Security offenses:

20-75 days

A year

Eight days

Minors in the Region

16-18

Like adults: 48-96-8 days

Offenses that are not security offenses:

15-40 days

Security offenses:

20-75 days

A year

Eight days

Minors in Israel

12-14

12-24 hours

20-40 days

Will not be arrested until the end of proceedings

Five days

Minors in Israel – 14-18

24-48 hours

20-40 days

Six months + extensions of up to 45 days each.

Five days

 

 

58.The tables I have presented above illustrate the significant changes the Respondents made in the matter at hand. For example, the current maximum period of detention until being brought before a judge for offenses that are not security offenses is 48 hours from the time of the arrest, with an option of extension as per the decision of an administrative authority for additional periods which shall not exceed 48 additional hours due to urgent acts of interrogations. In security offenses the maximum period of detention until being brought before a judge is 96 hours from the time of arrest, with an option of extending the detention by 48 additional hours by an administrative party in unusual circumstances, in which the head of the Interrogation Department at the Israel Security Agency was convinced that the interrogation could be substantially prejudiced. In most special circumstances, it is possible to extend the detention by an additional 48 hours (beyond the said six days), when the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation could result in harming the performance of an essential interrogation that is meant to save human lives. The Respondents repeatedly emphasized in their arguments that the new arrangement requires preparations and is scheduled to be reexamined again upon the lapse of two years from the time the Order becomes effective, based on the experience that shall accumulate during such period.

 

59.A significant change also occurred with respect to the matter of minors. We shall remind that before the Petitions were filed, there was no distinction at all between minors and adults in all of the periods of detention in the Region. Today, the age of minority in the Region increased from 16 to 18, and special arrangements were prescribed for minors based on a division into a number of age groups. Order no. 1711 provides that the maximum period of detention until bringing a "youth", i.e. a person who is at least 12 years old by not yet 14 year old, before a judge, both for security offenses and for offenses that are not security offenses, shall be 24 hours from the arrest, with a possibility of extending by an additional 24 hours due to urgent acts of interrogation; and that the maximum period of detention until bringing a "young adult", i.e. a person who is at least 14 years old but not yet 16 years old, before a judge, both for security offenses and offenses which are not security offenses, shall be 48 hours from the time of the arrest, with a possibility of extending by an additional 48 hours due to urgent acts of interrogation.

 

60.As for the definition of security offenses, the distinction between security offenses and offenses that are not security offenses for the purpose of the periods of detention in the Region was made by the Respondents only after the Petitions before us were filed. Therefore, the Petitioners' objections regarding this matter were not raised in their Petitions, but rather only in the framework of responses to the Respondents' update notices. The dispute regarding which offenses shall be defined as security offenses, is directly and closely linked to the reliefs that were requested in the Petitions, and in fact is a consequence of these reliefs. Indeed, we found it appropriate that the Respondents consider our remarks in the hearing that was held in the Petitions, inter alia, regarding the question whether it is proper to relate to the security offenses as one assemblage rather than excluding some of them from the Order's definitions. Consequently, the Respondents removed a third of the security offenses listed in the list in the Addendum of the Security Provisions Order and this is to be welcomed. If and to the extent the Petitioners still have objections regarding the offenses listed in the Addendum, they are entitled to voice their objections separately and it is inappropriate to further discuss this matter in the framework of the Petitions before us, which already encompass many matters.

 

61.Now, therefore, the staff work that was performed jointly with the Ministry of Justice and the Prime Minister Office produced a welcome change in the periods of detention listed in the Security Provisions Order. The change is meant to reduce, as must as possible, the infringement of the rights of the Palestinian detainees. There is no doubt that the State came a long way and significantly and even dramatically shortened the periods of detention applicable to the Palestinian residents of the Region. It is worthy to note the many discussions and long meetings that the State held with the IDF and the Ministry of Justice, together with other government ministries, until reaching the results which are expressed in the Amending Order (and in this respect, the Petitioners' achievements are invaluable. Their efforts to shorten the periods of detention of the Palestinian residents of the Region, bore significant fruit and are commendable).

 

62.So, considering the differences that stem from the different conditions between Israel and the Region, and in light of the dramatic changes that were just recently made, the "on site" implementation of which must be examined over a period of time – we are of the opinion that the current detention periods which were prescribed for adults, who are suspected of committing security offenses, in the time period before the filing of an indictment – are reasonable and proportionate, and therefore there is no cause for our involvement in this context at the current time. We shall mention that the Respondents requested to examine how the system adjusts to the changes that were made in the Security Provisions Order over a reasonable period of approximately two years, and it is presumed that upon the lapse of the period and in accordance with the on-site reality, the option of further shortening the mentioned periods of detention shall be reconsidered. We therefore assume that the Respondents' policy shall be re-examined from time to time in accordance with the security situation assessments and that if and to the extent it shall be possible to formulate reliefs these shall be applied in the future by the Respondents accordingly, and the periods of detention prescribed in the Amending Order shall be further shortened. Obviously, the Petitioners have the option of voicing their objections regarding the mentioned periods of detention, also upon the lapse of the "adjustment period".

 

63.Having said that, and without making light of the efforts the Respondents exerted and the important changes they made following the filing of the Petitions, we are not comfortable with three central matters (which partly overlap): Firstly, the periods of time in which Palestinian minors who are residents of the Region can be detained. Indeed significant changes were also made with respect to the population of minors, as specified above, however, in light of the special caution and sensitivity that must be applied towards people who are not yet adults, we are of the opinion that it is necessary to continue to monitor what is being done in their matter. The second matter that is not yet exhausted in the current Petitions is the periods of detention that was prescribed for Palestinians who are suspected or accused of offenses that are not defined as security offenses. The reasons presented in the Respondents' response, in its various stages, did not convince us of the need for such long periods of detention for "ordinary" criminal offenses. This is true also with respect to the third matter of detention until the end of proceedings of both minors and adults, in security offenses and offenses that are not security offenses (including detention after filing an indictment and prior to the commencement of the trial, which is currently 60 days). The circumstances and constraints which the Respondents indicated, by virtue of which more extended periods of detention are required in the Region, relate primarily to the stage of interrogation and collection of evidence and not to the stage of conducting the trial, after the indictment has been filed. In light of these difficulties, we considered issuing an order nisi with respect to the three mentioned matters, however at this stage we decided to leave the Petitions pending and to instruct the Respondents to reconsider how to advance these matters and give notice to such effect in the form of an update notice which is to be filed by September 15, 2014.

 

In summary, in all that relates to the maximum periods of detention for adults suspected of committing security offenses, at the stage before an indictment is filed; and in the scope of the offenses defined as security offenses – the Petitions are denied without an order for expenses (subject to that stated in paragraphs 60 and 62). However, in all that relates to the periods of detention of minors, the periods of detention of adults in offenses that are not security offenses; and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) – the Respondents shall, as mentioned, file an update notice by September 15, 2014.

 

Given today, 6th of Nissan, 5774 (April 6, 2014).

 

 

Justice                                     Justice                                                 Justice

Yassin v. Ben-David

Case/docket number: 
HCJ 5591/02
Date Decided: 
Wednesday, December 18, 2002
Decision Type: 
Original
Abstract: 

Facts: In the context of IDF operations against the terrorist infrastructure in areas of the Palestinian Authority (“Operation Defensive Wall”), thousands of suspects were detained. Due to overcrowding, some of these petitioners were transferred to the Kziot detention facility in the Negev region. Most of the detainees were detained pursuant to administrative detention orders. This petition concerns the detention conditions of these detainees.

 

Held: The Supreme Court held that the presumption of innocence should be applied to the detainees, as they are being held under administrative detention orders, and have neither been tried nor convicted. The Court further held that the army must ensure that the detainees be treated humanely, and in recognition of their essential human dignity. In determining whether the detainees were being treated humanely, the Court had recourse to domestic Israeli law as well as international law. Concerning the petition at hand, the Court held that, due to inadequate preparation on the part of the army, the initial conditions of detention did not meet minimum standards. In the intervening time, however, the army had improved conditions to the point where they did meet Israeli and international standards.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

 

HCJ 5591/02

1.            Halel Yassin

2.            Ibrahim Puzi Abrahim Siam

3.            Iad Nebil Aish Alaba’ad

4.            Sha’ar Manjed Yusef Mansuer

5.            Mustafa Ahmed Basharat

6.            Mahmus Shabana—Hebron

7.            Ramzi Mahmud Fiad

8.            Adalah—The Legal Center for Arab Minority Rights in Israel

9.            Kanun—The Palestinian Organization for the Protecion of Human and Enviormental Rights

10.          The Center for the Defense of the Individual founded by Dr. Lota Zetzberger

11.          B’tselem—The Israeli Information Center of Human Rights in the Occupied Territories

12.          Addameer—Prison Support and Human Rights Association

13.          Alhak—The Law in Service of Human Rights

14.          Almrah Center—Legal Social Center

15.          Nadi Alasir Alfalstini—West Bank

16.          The Public Committee Against Torture in Israel

17.          Physicians for Human Rights

v.

1.            Yoni Ben-David—Commander of the Kziot Military Camp-Kziot Detention Facility

2.            Binyamin Ben-Eliezer—Minster of Defense

 

The Supreme Court Sitting as the High Court of Justice

[December 18, 2002]

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

 

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

 

Facts: In the context of IDF operations against the terrorist infrastructure in areas of the Palestinian Authority (“Operation Defensive Wall”), thousands of suspects were detained. Due to overcrowding, some of these petitioners were transferred to the Kziot detention facility in the Negev region. Most of the detainees were detained pursuant to administrative detention orders. This petition concerns the detention conditions of these detainees.

 

Held: The Supreme Court held that the presumption of innocence should be applied to the detainees, as they are being held under administrative detention orders, and have neither been tried nor convicted. The Court further held that the army must ensure that the detainees be treated humanely, and in recognition of their essential human dignity. In determining whether the detainees were being treated humanely, the Court had recourse to domestic Israeli law as well as international law. Concerning the petition at hand, the Court held that, due to inadequate preparation on the part of the army, the initial conditions of detention did not meet minimum standards. In the intervening time, however, the army had improved conditions to the point where they did meet Israeli and international standards.

 

Basic Laws cited:

Basic Law: Human Dignity and Liberty

 

Legislation cited:

Emergency Powers (Detentions) Law-1979

Criminal Procedure (Jurisdiction and Enforcement—Detentions) Law-1996, §§ 1(c), 9(a)

 

Regulations cited:

Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981, §§ 5(a), 5(b), 6(a), 6(b), 8(a), 8(c)

Emergency Regulations (Offences Committed in Israeli-Held Areas—Jurisdiction and Legal Assistance)-1967

Criminal Procedure Regulations (Jurisdiction and Enforcement—Detentions) (Holding Conditions in Detention)-1997

 

Treaties Cited:

The International Covenant on Civil and Political Rights (1966),

Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949

 

 

Israeli Supreme Court cases cited:

[1]          HCJ 3278/02 The Center for the Defense of the Individual founded by Dr. Lota Salzberger v. Commander of the IDF Forces in the West Bank, IsrSC 57(1) 385

[2]          HCJ 253/88 Sajadia v. The Minister of Defense, IsrSC 42(3) 801

[3]          HCJ 2320/98 El-Amla v. Commander of the IDF Forces in the West Bank, IsrSC 52(3) 246

[4]          HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in Israel v. Commander of the IDF Forces in the West Bank, IsrSC (unreported decision)

[5]          HCJ 355/79 Catlan v. The Prison Service, IsrSC 34(3) 294

[6]          CA 5942/92 John Doe v. John Doe, IsrSC 35(1) 536

[7]          HCJ 221/80 Darvish v. The Prison Service, IsrSC 50(2) 749

[8]          HCJ 1622/96 Abad Al Rahman Al Ahmed v. The General Defense Service, IsrSC 38(2) 826

[9]          HCJ 337/84 Hokma v. The Minister of the Interior, IsrSC 50(4) 136

[10]        CA 4463/94 Golan v. The Prison Services, IsrSC 52(5) 826

[11]        HCJLA 6561/97 The State of Israel v. Mendelson, IsrSC 52(5) 849

[12]        HCJL.A. 823/96 Vanunu v. The Prison Service, IsrSC 51(2) 873

[13]        HCJ 3114/02 Barake v. The Minister of Defense, IsrSC 56(3) 11

 

Foreign Books cited:

[14]        J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)

 

Petition denied.

 

For the petitioners—Morad Alsana; Hasan Gabarin; Mahmud Gabarin

For the respondents—Shai Nitzan

 

 

 

JUDGMENT

President A. Barak

This petition concerns the detention conditions of detainees from Judea and Samaria who are being held in administrative detention at the Kziot detention facility.

 

Facts

 

1.            Both Israel and the area have suffered intense terrorist activity.  In Operation Defensive Wall, the government decided to pursue military operations against the Palestinian terrorist infrastructure in Judea and Samaria.  Within the framework of this operation, many suspects have been detained. See HCJ 3278/02 The Center for the Defense of the Individual founded by Dr. Lota Salzberger v. Commander of the IDF Forces in the West Bank [1].  The detainees were originally held in temporary facilities which were set up in brigade headquarters.  After an initial screening took place, those who were chosen to remain in detention were moved to the Ofer Camp detention facility in Judea and Samaria.  Due to overcrowding, some of the detainees were moved to the detention facility in Kziot, which is located in the Negev, in the south of Israel.

 

2.            Kziot Camp was opened in the second half of the 1980s.  It primarily held administrative detainees from the area.  The conditions of the detention in the camp were the subject of a comprehensive examination by this Court in HCJ 253/88 Sajadia v. The Minister of Defense [2].  The facility was shut down during the second half of the 1990s. In April 2002, once it became clear that Israel would continue holding a substantial number of detainees for security reasons, and that it would be impossible to hold them in Ofer Camp, Kziot Camp was reopened on short notice.  The majority of the detainees are being held at Kziot Camp under administrative arrest warrants which were issued against them in the area.

 

Arguments

 

3.            Petitioners complain about the conditions of the detention in Kziot Camp. Their chief complaint concerns the fact that the detainees are being held in tents.  Petitioners claim that tents do not provide suitable means of detention.  The tents do not shield against the rigors of desert weather, such as heat during the day and cold during the night.  The tents cannot be shut and, as such, sand, mosquitoes, crickets, insects and reptiles enter the tents and disturb the detainees.  The petitioners also complain of overcrowding in the tents. Furthermore, they contend that the food that the detainees are supplied with is insufficient and of low-quality.  The detainees, who are exposed to the intense heat of the Negev, are not supplied with cold water. The detainees do not receive sufficient clothing, and they are unable to launder the little clothing they do receive.  The beds are such that it is difficult for the detainees to sleep properly. The beds are actually wooden beds with mattresses that rise 10 to 15 centimeters above the ground.  As a result, many of the detainees wake up in the middle of the night to find their faces or bodies covered with crickets and insects. Petitioners claim that the amount of soap supplied is insufficient, and that there are not enough showers.  There are no toilet seats in the bathrooms.  The doctor is not easily accessible nor does he speak Arabic.  The petitioners complain that 220 volt electricity does not run through the tents.  Consequently, the detainees are unable to use electrical appliances, especially televisions and fans.  The detainees are not permitted to communicate with their families via telephone.  They are not provided with newspapers and books, nor is there a canteen on location.

 

4.            In respondents’ reply, they claim that the petition was submitted at the end of June 2002. As such, the evidence presented by the petition consists of affidavits submitted by detainees who were held in Kziot Camp in April, and the last of which was submitted at the beginning of May.   Those were the first months of the detention facility's renewed operation, which was reopened on short notice. Between the submission of the petition and the submission of respondents’ reply brief on October 11, 2002, the facility underwent many improvements. Most of petitioners’ claims have been resolved.  In June of 2002, the Attorney-General visited the detention facility, observed the detention conditions and listened to the complaints of the detainees.  During his visit he observed that although the living conditions were not comfortable, especially due to overcrowding and the climate, they were nevertheless reasonable in relation to the reality in Israel.  He added that the conditions did not substantially differ from those provided to the soldiers who carry out detention operations and security functions in the facility, or from the conditions provided to IDF soldiers in general.  While visiting the facility, the Attorney-General investigated various options for improving the detention conditions.  Since then, these suggestions have been implemented.  At the time that respondents submitted their reply the facility held 939 detainees, dispersed throughout four divisions.  Each division was divided into four sub-divisions.  Located within each sub-division were three double “12 tents,” in which 20 detainees were held. 

 

5.            Referring directly to the specific claims made by the petitioners, respondents asserted that the tents are not overcrowded.  Respondents claim that the tents in the facility provide suitable protection against the rigors of the weather.  The quality and quantity of the food provided to the detainees is satisfactory.  In the summer, they are supplied with a large quantity of ice.  The wooden beds and mattresses meet the same standards as those provided to IDF soldiers.  There is no want of clothing in the facility.  A fountain with a large number of faucets may be found in every sub-division.  The detainees are supplied with a sufficient amount of soap.  The level of personal hygiene in the bathrooms and showers is satisfactory.  There is an infirmary operating in the facility which employs three doctors and thirteen medics.  Medical inspections are performed daily in the facility.  When necessary, patients are quickly transferred to the central hospital in the Negev, Soroka Hospital in Beer Sheva.  There is also a dental clinic on location, which employs a dentist.  For security reasons, detainees are not permitted to use telephones to call out of the facility.  The detainees maintain communication with their families via letters.  The Red Cross visits the facility.  The detainees are provided with Hebrew and Arabic newspapers, and they are allowed to use battery-powered radios.  The Red Cross has provided games and a ping-pong table to each sub-division.  There is an operational canteen in the facility.  For security reasons, the sub-divisions are not connected to 220-volt electricity—all tents are illuminated by 24-volt light bulbs.  At night, after the detainees are accounted for, extension chords are utilized in order to allow the detainees to watch television.

 

Arguments of October 15, 2002

 

6.            In oral arguments, petitioners admitted that improvements had been made since the submission of their petition.  Nevertheless, they claim, these improvements are insufficient. Petitioners reiterated their claims against the use of tents and the lack of 220-volt electricity.  They complained of insufficient bathroom stalls and cleaning equipment.  Additionally, they complained that snakes and mice had been found in the area.  Petitioners protested the absence of tables in the facility, which forces the detainees to eat by their beds, which consequently become filthy.  Respondents answered that the old tents had been replaced with new ones.  They asserted that the location is now sprayed for snakes and other animals.  However, regarding the issue of electricity, security considerations prevent any change in the situation.

 

Normative Framework

 

7.            It is appropriate to open this discussion with the normative framework of this case, as was done by Justice Shamgar in Sajadia [2].  This is in response to the possible claim that, since the detainees being held in Kziot Camp are terrorists who have harmed innocent people, we should not consider their detention conditions. This argument is fundamentally incorrect.  Those being detained in the Kziot Camp have not been tried; needless to say, they have not been convicted.  They still enjoy the presumption of innocence.  Justice Shamgar expressed this notion in Sajadia [2]:

 

An administrative detainee has not been convicted, nor is he carrying out a sentence.  He is detained in accordance with a decision made by an administrative-military authority, as an exceptional emergency means due to security reasons …. The aim of the detention is to prevent security hazards, which arise from actions that the detainee is liable to commit, where there is no reasonable possibility of preventing such hazards through standard legal action, such as criminal proceedings, or by taking administrative steps with milder consequences…. The difference between a convicted prisoner and a detainee being held in order to prevent security hazards, is manifest in the status of the administrative detainee and his detention conditions.

 

Sajadia, [2] at 821. In the same spirit Justice Bach noted:

 

With all due respect for security considerations, we must not forget that we are talking about detainees deprived of liberty without their having been convicted of any crime in standard criminal proceedings. We must not be satisfied with a situation in which the detention conditions of these detainees are poorer than the conditions of prisoners who have been sentenced to imprisonment after being convicted.

 

Sajadia, [2] at 831. In a different context, Justice Zamir indicated that:

 

Administrative detention deprives an individual of his liberty in the most severe fashion.  Liberty is denied, not by the court, but rather by an administrative authority; not by a judicial proceeding, but rather by an administrative decision.

 

HCJ 2320/98 El-Amla v. Commander of the IDF Forces in the West Bank [3].

 

Not only should we not allow the detention conditions of administrative detainees to fall short of those of convicted prisoners, we should also strive to ensure that the conditions of detainees surpass those provided to prisoners. These detainees continue to enjoy the presumption of innocence. See HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in Israel v. Commander of the IDF Forces in the West Bank (unreported case) [4]. This approach was established by the Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981 [hereinafter the Detention Regulations].  The security considerations that led to the detention of these people do not justify holding them under unsatisfactory conditions. 

 

8.            The detainees were lawfully deprived of their liberty.  They were not, however, stripped of their humanity. In an affair that occurred more than twenty years ago, prior to the legislation of the Basic Law: Human Dignity and Liberty, I remarked:

 

Every person in Israel enjoys the basic right to bodily integrity and the protection of his dignity as a human being…. Convicts and detainees are also entitled to the protection of their bodily integrity and human dignity.  Prison walls do not come between the detainee and his human dignity.

 

HCJ 355/79 Catlan v. The Prison Service [5]. This is especially true after the enactment of the Basic Law: Human Dignity and Liberty, “which does not focus on the proclamation of the existence of fundamental rights, but rather on their essence, their extent and their practical realization.” CA 5942/92 John Doe v. John Doe [6]. (Shamgar, P.) Therefore, the army must ensure that the detainees be treated humanely, and in recognition of their human dignity. See The Center for the Defense of the Individual, [1] at par. 22.  The detention conditions must guarantee civilized and humane life. HCJ 221/80 Darvish v. The Prison Service [7]. Human dignity, which constitutes the foundation of the Basic Law: Human Dignity and Liberty, together with the values of Israel as a Jewish and democratic state, forms the normative lens through which we examine the dentition conditions of detainees.  This framework is not one-sided.  Human liberty is not its sole consideration.  Nor is national security its sole consideration.  The framework attempts to achieve a balance—at times delicate—between the need to guarantee conditions of detention as humane as possible and the need to guarantee national security. 

 

9.            An important legal source with regard to detention conditions is the Emergency Powers (Detention) Law-1979. The Detention Regulations were set out pursuant to the grant of authority contained in this law. These regulations set forth the standards that govern the detention conditions of those who are administratively detained in Israel.  They also apply to whoever is detained in the area pursuant to security legislation.  This is established in regulation 6(b) of the Emergency Regulations (Offences Committed in Israeli-Held Areas—Jurisdiction and Legal Assistance)-1967, which states:

 

Where an arrest warrant or detention order has been issued against any person in the area, pursuant to the proclamation or the order of a commander, such a warrant or order may be executed in Israel in the same manner that arrest warrants and detention orders are executed in Israel; and that person may be transferred, for detention, to the area where the crime was committed.

 

In Sajadia [2] the court held, based on this regulation, that Kziot Camp must heed the Detention Regulations as well. See also HCJ 1622/96 Abad Al Rahman Al Ahmed v. The General Defense Service [8].   Regulation 5(a) of these regulations states that “a detainee in a detention facility shall receive the same meal portion provided to the jailers in that detention location.”  The regulations do not specify that there must be an operative canteen in the facility.  However, they do specify that “in a detention facility which has a canteen, the commanding officer may permit the detainees to purchase goods there.”  The regulations also state that “a detainee is entitled to receive medical treatment and medical equipment, as is demanded by his health condition.” See Regulation 6(b).  Regulation 6(a) specifies that “a detainee shall be examined monthly by a doctor designated by the commander, and at any time where it becomes necessary to do so.” The Detention Regulations also state that “a detainee is entitled … to receive bathing and cleaning materials as necessary,” regulation 8(a), as is he entitled “to receive newspapers and books for reading, as has been decided by the commander” regulation 8(c). 

 

10.            Aside from these regulations, which concern the conditions of administrative detention, comprehensive rules concerning the conditions of “regular” detention may be found in other legislation and regulations.  Section 9(a) of the Criminal Procedure (Jurisdiction and Enforcement—Detentions) Law-1996 states that “a detainee shall be held under suitable conditions, which shall not harm his health or dignity.” Detailed instructions may be found in the Criminal Procedure Regulations (Jurisdiction and Enforcement—Detentions) (Holding Conditions in Detention)-1997. 

We shall now turn to the provisions of international law regarding detention conditions.

 

International Law

 

11.          Israel is not an isolated island. She a member of an international system, which has set out standards concerning conditions of detention.  The most significant of these may be found in article 10(1) of the International Covenant on Civil and Political Rights (1966), which states:

 

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

 

This rule, which has the force of customary international law, see The Center for the Defense of the Individual, [1] at par. 23, is in harmony with the Basic Law: Human Dignity and Liberty, which protects the dignity of all persons, including detainees.  Another important source of international law is the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. These principles were endorsed by the United Nations General Assembly in 1988.  They establish principles for all forms of detention, including administrative detention. These principles, even if they are not directly binding in internal Israeli law, set forth standards by which any reasonable government authority should act. In this matter we must also refer to article 11(1) of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and Fight Against Terrorism, which asserts that:

 

A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.

 

12.          The Geneva Convention Relative to the Protection of Civilian Persons in Time of War [hereinafter The Fourth Geneva Convention] provides an additional legal source for examination of the detention conditions in Kziot Camp.  This convention sets forth comprehensive arrangements concerning conditions of detention. The validity of the convention with regard to the detention conditions at Kziot is not a subject of dispute before us, as Israel sees itself as bound by the humanitarian provisions of the convention. We have reviewed the details of these provisions in The Center for the Protection of the Individual [1], at par.23.

 

13.          Israeli common law provides an additional legal source concerning this matter.  Our common law includes a long list of judgments concerning the conditions of detention in Israel.  These judgments are founded on the need to strike a proper balance between the liberty of the individual and the security needs of the public. Justice M. Elon explained the guiding principle of this balance:

 

It is an important principle that every civil right to which a person is entitled is preserved even when he is imprisoned or detained. Imprisonment does not deprive anyone of any right, unless such deprivation is an inherent part of detention—such as taking away one’s freedom of movement—or where an explicit statute refers to this matter.

 

HCJ 337/84 Hokma v. The Minister of the Interior, [9] at 832. In the same spirit Justice Matza wrote:

 

It is a firmly established precept that, even between prison walls, a person’s fundamental rights “survive.” Such rights belong to the prisoner (as well as the detainee) even within his prison cell. The only exceptions to this rule are the prisoner’s right to freedom of movement and other limitations which are inherent to depriving him of his personal liberty, or which are based on explicit legal instructions.

 

CA 4463/94 Golan v. The Prison Services, [10] at 152-53. Justice Matza continued, [10] at 155:

 

We do not allow the deprivation of basic human rights, which the prisoners require. These rights consists not only of the prisoner’s right to eat, drink and sleep, but also the right to have these needs supplied in a civilized manner.

 

These decisions and others like them, whether directly or indirectly, provide standards by which we can examine the detention conditions in Kziot. See, e.g., HCJLA 6561/97 The State of Israel v. Mendelson [11]; HCJL.A. 823/96 Vanunu v. The Prison Service [12]. Furthermore, Israeli administrative law applies to the actions of every government authority in Israel. Thus, these principles apply to the actions of respondents, including the establishment and maintenance of detention conditions.  As such, the detention conditions must be reasonable and proportional. See Center for the Defense of the Individual [1]. One may learn about the standards of reasonableness and proportionality from the Standard Minimum Rules for Treatment of Prisoners, which were adopted by the United Nations in 1955. See Droish, [7] at 539; Sajadia, [2] at 832.  These standards apply to all forms of imprisonment, including detention.  We reviewed the details of these instructions in Center for the Defense of the Individual, [1] at par.23.

 

From the General to the Specific

 

14.          Soon after the reopening of Kziot Camp, conditions of detention there underwent changes.  This reopening was done hastily and without preparation.  The detention conditions encountered by the first detainees, whose affidavits are attached to this petition, did not meet the necessary minimum standards. There was no justification for this.  Operation Defensive Wall was planned in advance.  Its main goal was “to prevail over the Palestinian terror infrastructure, and to prevent the recurrence of the terror attacks which have plagued Israel.” See HCJ 3114/02 Barake v. The Minister of Defense [13]. It was obvious to all—or at least should have been obvious—that one of the consequences of the operation would be a large number of detainees.  As such, it was necessary to prepare detention facilities in advance, which would satisfy minimum standards.  This was not done.

 

15.          In time, the conditions were improved and the necessary minimum standards were met.  In certain matters, the conditions now exceed minimum standards.  For example, the tents are no longer overcrowded; the quantity and quality of the food supplied is satisfactory.  The detainees are supplied with an adequate quantity of ice.  There are sufficient changes of clothes available.  The conditions of personal hygiene, as well as the general level of sanitation, are both satisfactory.  The medical treatment is satisfactory.  The detainees are provided with newspapers, and they are allowed to use battery-operated radios.  In each section there are ball games and a ping-pong table.  There is an operational canteen on location.  In fact, during oral arguments, respondents dropped many of the claims raised in their petition.  We will therefore focus on a number of issues, which have not been resolved.

 

16.          The first issue relates to the detainees’ being held in tents.  According to petitioners, the environmental conditions in the Negev—with regard to weather conditions, as well as with regard to the sand and insects that easily penetrate the tents—require that the detainees not be held in tents.

 

 In their reply respondents emphasized that the tents provide suitable protection against the rigors of Israeli weather.  They added that thousands of soldiers, including those who supervise the detainees in Kziot, regularly reside in tents for long periods of time. However, it must be noted that, while the conditions of the soldiers are both important and relevant to this petition, they cannot provide a decisive answer. Furthermore, the Detention Regulations do not address this matter. Even so, it has been accepted practice—both in Kziot and in the military prison in Megiddo—that detainees and prisoners reside in tents.

 

17.          Article 85 of the Fourth Geneva Convention concerns living conditions.  It states that the detaining authority must ensure that the detainees:

 

[B]e accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigors of the climate and the effects of war.

 

In Pictet’s explanation of this rule, he asks:

 

Could the term ‘buildings or quarters which afford every possible safeguard as regard hygiene and health, and provide efficient protection against the rigors of the climate and the effects of war’ be taken to mean camps made up of tents?   This practice is allowed in the case of prisoners of war where the Detaining Powers follow the same procedure for their own troops.  During the Second World War it proved satisfactory in certain climates when some essential improvements had been carried out (cement floors, brick walls, stone paths and access roads).  The same latitude, however could hardly be granted with regard to civilian internees and it seems clear that ‘buildings or quarters’ must be taken to mean structures of a permanent character.

 

See J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 386 (1958). I doubt that Pictet’s interpretation is correct.  It seems that a better approach would vary according to the time and place.  It depends upon the nature of the tents on the one hand, and the conditions of the location on the other.  Additionally, a significant factor is whether the detention is short-term or long-term, whether it lasts months or even years.  Ultimately, the test is one of reasonableness and proportionality. Thus, we call for this matter to be investigated.

 

18.          The second issue is the height of the beds. Petitioners complain of the height of the beds being 10-15 centimeters.  They claim that, as a result, many of the detainees find their faces covered with insects, which easily enter the tents.  In response, respondents argued that the detainees have makeshift beds, which they independently built from the cots found in the sub-sections of the facility.  Whether or not this answer has resolved the problem is unclear.  We ask that this matter be thoroughly reexamined.  For as long as the detainees remain in tents, the army should do all in its power to provide the detainees with reasonable sleeping conditions.   The fact that detainees built make-shift beds with their own hands points to the existence of a problem. This fact also indicates that making the beds higher does not raise security issues.  In these circumstances, the obligation to resolve this problem rests on respondents. They must address this issue.

 

19.          The third matter which has not been resolved is the absence of toilet seats in the bathrooms.  Respondent's reply does not specifically refer to this matter, save the general statement that the authorities consider the level of personal hygiene satisfactory.  This matter also requires reexamination.

 

20.          The fourth unresolved issue is the absence of tables for eating.  In The Center for the Defense of the Individual [1], respondents argued that this matter raises security issues. Respondents did not repeat this argument here. Instead, they argued that erecting tables would cause overcrowding. We presume that, for those who request it, eating on tables, as opposed to on the floor, is one of the conditions which “guarantee civilized and humane life.” Darvish [7], at 538 (H. Cohen, D.P.) Other than their general argument regarding lack of space, we received no relevant explanation from the respondents.  We ask that this matter be thoroughly examined and satisfactorily resolved.

 

Again in the Matter of Detention Conditions and Judicial Review

 

21.          In this petition we have dealt with the fine details of detention conditions.  Such is our duty, and we do not take it lightly.  Nevertheless, this is not an optimal arrangement, neither from the perspective of the rights of the detainee, nor from a security perspective.  It is necessary that there be an “intermediate body” between the detention authorities and the High Court of Justice.  Such a body must be able to carry out prolonged surveillance and supervision.  The body must be well informed about security requirements and the needs of the detainees and must be able to advise the respondents about all matters regarding detention conditions.  Justice Shamgar emphasized the need for such an arrangement in Sajadia, [2] at 825-26:

 

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 respondents 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.

 

We are confident that the respondents will take our suggestions into account, and that the proper steps will be taken in order to realize them.

 

22.          Furthermore, it should be reconsidered whether it is appropriate that the army be responsible for the detention conditions of administrative detainees from the area.  It is our opinion the government should consider placing this responsibility in the hands of the Prison Service.  Such a resolution would allow a number of advantages.  First, the responsibility of tending to detainees and detention conditions will be placed in the hands of a body whose expertise is in this field.  Second, the Prison Service operates in accordance with a intricate system of law.  These laws guarantee that an appropriate balance is struck between security needs and the rights of the detainees.  For example, under these laws, the detainees will have the opportunity to submit “prisoner petitions,” which will ensure judicial review over their detention conditions.  We are well aware of the problems which arise from our suggestion.  We ask that the matter be considered both practically and normatively.  There should be an investigation concerning whether legislative modification would be necessary for the implementation of this suggestion, or whether it would be possible, and perhaps even necessary, to achieve this result in the context of existing law. See section 6 (b) of the Emergency Regulations (Judea and Samaria, and the Gaza Strip—Jurisdiction and Legal Assistance) (Extension of Validity)-1977, and section 1(c) of the Criminal Procedure (Jurisdiction and Enforcement—Detention)-1966.

 

Petition Denied.

 

Justice D. Beinisch

 

I agree.

 

Justice Y. Englard

 

I agree.

 

Petition denied, as per the opinion of President A. Barak

December 18, 2002

 

 

 

 

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

 

 

 

Full opinion: 

Public Committee Against Torture v. Government

Case/docket number: 
HCJ 769/02
Date Decided: 
Thursday, December 14, 2006
Decision Type: 
Original
Abstract: 

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

 

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

 

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

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

HCJ 769/02

1.         Public Committee against Torture in Israel

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

v.

1.         Government of Israel

2.         Prime Minister of Israel

3.         Minister of Defence

4.         Israel Defence Forces

5.         Chief of General Staff

6.         Shurat HaDin — Israel Law Centre and 24 others

 

 

The Supreme Court sitting as the High Court of Justice

[14 December 2006]

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

 

 

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

 

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

 

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

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

 

Petition denied.

 

Legislation cited:

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

Basic Law: the Army, s. 1.

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

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

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

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

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Israeli District Court cases cited:

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

 

Israeli Military Tribunal cases cited:

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

 

American cases cited:

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

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

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

 

Canadian cases cited:

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

 

English cases cited:

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

 

European Court of Human Rights cases cited:

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

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

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

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

 

Inter-American Court of Human Rights cases cited:

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

 

International Criminal Tribunal for Rwanda cases cited:

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

 

International Criminal Tribunal for the former Yugoslavia cases cited:

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

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

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

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

 

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

For respondents 1-5 — S. Nitzan.

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

 

 

JUDGMENT

 

 

President Emeritus A. Barak

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

(1) Factual background

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

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

(2) The petitioners’ arguments

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

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

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

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

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

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

(3) The respondents’ reply

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

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

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

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

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

(4) The petition and the hearing thereof

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

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

(5) The general normative framework

A.    An international armed conflict

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

‘Since the end of September 2000, fierce fighting has been taking place in Judaea, Samaria and the Gaza Strip. This is not police activity. It is an armed struggle’ (HCJ 7015/02 Ajuri v. IDF Commander in West Bank [9], at p. 358 {87}).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indeed —

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

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

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

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

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

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

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

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

Later in that case I said that:

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

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

B.    Combatants

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

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

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

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

…’

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

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

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

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

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

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

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

C.    Civilians

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

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

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

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

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

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

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

D.    Is there a third category of unlawful combatants?

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

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

(6) The status of civilians who are unlawful combatants

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

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

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

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

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

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

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

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

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

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

‘Persons taking no active part in the hostilities…’

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

C.    The nature of the basic principle

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

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

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

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

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

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

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

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

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

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

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

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

E.    Second part: ‘take a direct part’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F.     Third part: ‘for such time’

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

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

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

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

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

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

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

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

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

(7) Proportionality

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

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

B.    Proportionality in an international armed conflict

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

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

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

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

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

(a) …

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

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

Due proportion between the advantage and the damage

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

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

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

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

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

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

8.    Justiciability

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(9) The scope of judicial scrutiny

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

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

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

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

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

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

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

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

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

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

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

(10) From general principles to the specific case

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

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

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

Conclusion

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

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

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

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

‘In this balance, human rights cannot receive complete protection, as if there were no terror, and state security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State. It provides a reason for its struggle’ (HCJ 7015/02 Ajuri v. IDF Commander in West Bank [6], at p. 383 {120}).

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

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

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

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

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

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

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

Let us pray that this is so!

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

 

 

Vice-President E. Rivlin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

President D. Beinisch

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

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

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

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

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

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

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

 

 

Petition denied.

23 Kislev 5767.

14 December 2006.

 

Hass v. IDF Commander in West Bank

Case/docket number: 
HCJ 10356/02
Date Decided: 
Thursday, March 4, 2004
Decision Type: 
Original
Abstract: 

Facts: The Machpela Cave is believed to be the burial site of Abraham and Sarah, Isaac and Rebecca, Jacob and Leah. As such, it is holy to Jews and Moslems. Over the years, the site has seen acts of violence by members of one religion against the other, resulting in casualties.

On Sabbaths and festivals, large numbers of Jews, sometimes in the thousands, go from the nearby town of Kiryat Arba to the Machpela Cave on foot, since the use of vehicles is prohibited by Judaism on these days. They go to the Cave  by means of the ‘worshippers’ route,’ a narrow passage that is not wide enough for security or rescue vehicles to pass in case of a terrorist attack.

 

The IDF commander in Judaea and Samaria decided to widen the worshippers’ route, and for this purpose he made an order to requisition private land and to demolish certain buildings along the route. The petitioners challenged the constitutionality of this order.

 

Held: In view of the constitutional importance of the freedom of religion and the freedom of worship, a certain violation of property rights may be allowed to facilitate the freedom of worship. The buildings scheduled for demolition are uninhabited, and the widening of the route was kept to the absolute minimum, to allow only unidirectional traffic. In these circumstances, the requisition order satisfies the test of constitutionality.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

HCJ 10356/02

1.       Yoav Hass

2.       MK Musi Raz

3.       ‘Yesh Gevul’ Movement

v.

1.       IDF Commander in West Bank

2.       State of Israel

 

HCJ 10497/02

Hebron Municipality and others

v.

1. Major-General Moshe Kaplinsky, IDF Commander in Judaea and Samaria

2.       Civilian Administration for Judaea and Samaria

3.       Government of Israel

 

 

The Supreme Court sitting as the High Court of Justice

[4 March 2004]

Before President A. Barak and Justices M. Cheshin, A. Procaccia

 

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

 

Facts: The Machpela Cave is believed to be the burial site of Abraham and Sarah, Isaac and Rebecca, Jacob and Leah. As such, it is holy to Jews and Moslems. Over the years, the site has seen acts of violence by members of one religion against the other, resulting in casualties.

On Sabbaths and festivals, large numbers of Jews, sometimes in the thousands, go from the nearby town of Kiryat Arba to the Machpela Cave on foot, since the use of vehicles is prohibited by Judaism on these days. They go to the Cave  by means of the ‘worshippers’ route,’ a narrow passage that is not wide enough for security or rescue vehicles to pass in case of a terrorist attack.

The IDF commander in Judaea and Samaria decided to widen the worshippers’ route, and for this purpose he made an order to requisition private land and to demolish certain buildings along the route. The petitioners challenged the constitutionality of this order.

 

Held: In view of the constitutional importance of the freedom of religion and the freedom of worship, a certain violation of property rights may be allowed to facilitate the freedom of worship. The buildings scheduled for demolition are uninhabited, and the widening of the route was kept to the absolute minimum, to allow only unidirectional traffic. In these circumstances, the requisition order satisfies the test of constitutionality.

 

Petitions denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Palestine Order in Council, 1922, art. 83.

Protection of Holy Places Law, 5727-1967, s. 1.

 

Israeli Supreme Court cases cited:

[1]      HCJ 4212/02 Gussin v. IDF Commander [2002] IsrSC 56(4) 608.

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

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

[4]      HCJ 6860/01 Hamada v. Israel Insurance Pool [2003] IsrSC 57(3) 8.

[5]      HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria (unreported).

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

[7]      HCJ 591/88 Taha v. Minister of Defence [1991] IsrSC 45(2) 45.

[8]      HCJ 2717/96 Wafa v. Minister of Defence [1996] IsrSC 50(2) 848.

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

[10]    HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [1991] IsrSC 45(2) 325.

[11]    HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [1988] IsrSC 42(2) 767.

[12]    HCJ 834/78 Salama v. Minister of Defence [1979] IsrSC 33(1) 471.

[13]    HCJ 302/72 Hilo v. Government of Israel [1973] IsrSC 27(2) 169.

[14]    HCJ 619/78 El Talia Weekly v. Minister of Defence [1979] IsrSC 33(3) 505.

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

[16]    HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

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

[18]    HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[19]    HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

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

[21]    HCJ 469/83 Hebron National United Bus Co. Ltd v. Minister of Defence (unreported).

[22]    HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip (unreported).

[23]    HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

[24]    HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[25]    HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

[26]    HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [1988] IsrSC 42(3) 377.

[27]    HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

[28]    HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [1984] IsrSC 38(2) 449.

[29]    HCJ 7128/96 Temple Mount Faithful v. Government of Israel [1997] IsrSC 51(2) 509.

[30]    HCJ 2390/96 Karasik v. State of Israel [2001] IsrSC 55(2) 625.

[31]    CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [2001] IsrSC 55(4) 629.

[32]    LCA 214/88 Tawil v. Deutch [1990] IsrSC 44(3) 752.

[33]    HCJ 270/87 Kando v. Minister of Defence [1989] IsrSC 43(1) 738.

[34]    HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

 

For the petitioners in HCJ 10356/02 — Y. Arnon, Y. Niv.

For the petitioners in HCJ 10497/02 — S. Licker.

For the respondents — Y. Gnessin.

 

 

JUDGMENT

 

 

Justice A. Procaccia

The question

1.    The Jewish inhabitants of Kiryat Arba wish to realize their right to pray at the Machpela cave, which is regarded as a holy site by Judaism and Islam. Pedestrian access from Kiryat Arba to the Machpela Cave passes along a route that is approximately 730 metres long (hereafter — ‘the worshippers’ route’). A large number of pedestrians — men, women and children — pass along this route every Sabbath and festival on their way to pray at the Machpela Cave. In the area adjacent to the worshippers’ route, murderous attacks were made in recent years by terror organizations. Because of the security risk that threatens the pedestrians on the route, the IDF Commander in Judaea and Samaria (hereafter — ‘the area commander’) wishes to adopt various measures to improve the security of those passing along the route. For this purpose, he wishes, inter alia, to widen the path in the northern part of the route and to protect it in various ways. He also wishes to widen the path at the southern part by the Machpela Cave in order to allow security and rescue vehicles to pass, something which is currently impossible because of the narrowness of the path. In order to widen the path along the route, it is necessary to requisition areas of land along the route, and to carry out a partial demolition of two buildings and part of an additional building that are situated in the southern part of the route and are uninhabited. In order to give effect to these measures, the area commander issued a requisition and demolition order. The legality of this action by the area commander is subject to judicial review in this proceeding. We will examine the scope of his authority to issue the order, and we will consider in this regard the question of the relationship between the worshippers’ right of movement and worship  and the property right of the owners of the land situated in the area of the order.

Background

2.    On Friday evening, 15 November 2002, shots were fired by a terrorist cell at the security forces and worshippers who were walking along the worshippers’ route from Sabbath prayers at the Machpela Cave to their homes in Kiryat Arba. In the battle that ensued between the terrorists and the security forces at the site, twelve security personnel from the IDF, the Border Police and the Kiryat Arba Duty Unit were killed. As a result of this event, and against the background of several previous terror incidents that occurred near that place, the area commander decided to adopt measures to increase the level of security on the worshippers’ route in order to protect the safety and lives of those using it on the way to prayers. The main steps were widening the path and carrying out actions required for this purpose. In order to carry out this plan, on 29 November 2003 the area commander issued an ‘Order for the Requisition of Land’ (hereafter — ‘the requisition order’), in which he ordered the requisition of parcels of land lying adjacent to the route, and the destruction of several buildings along the path. Originally, the order was intended to allow the following measures to be carried out: in the northern part of the route (which extends from the ‘Pishpesh’ route to the crossroads of the ‘Zion,’ ‘Erez’ and ‘Goren’ routes) — building a concrete defence wall to protect the worshippers against flat-trajectory shooting from the east and also widening the road for the purpose of paving a walkway for pedestrians that will be protected by a concrete barrier whose purpose is to prevent pedestrians from being trampled by a vehicle travelling on the road. At the junction itself, a change is planned in the level of the routes crossing it, in order to prevent an obstruction of vehicles at the junction, which in itself creates a security risk. The southern part of the route is a very narrow passage that passes mainly by the houses of the eastern casba of Hebron, and it leads to the Machpela Cave. This passage, because of its narrowness, does not allow vehicles to transverse it. Along it there are abandoned buildings that may be used as a refuge for terrorists and may endanger the lives of pedestrians that pass by, sometimes in their thousands, on their way to prayers. Here the original order planned a widening of the passage to a total width of eight metres, in order to allow the passage of military vehicles and rescue vehicles for the purpose of accompanying and protecting the worshippers, and for the purpose of rescue in case of an attack. In order to allow such a widening, it planned the destruction of approximately 13 abandoned buildings that are situated alongside the route. The order was for a limited time.

The petitions

3.    Before us are two petitions against the requisition order. In one petition the petitioners are the ‘Yesh Gevul’ Movement and some of its activists, and in the other petition the petitioners are the Hebron Municipality, the Hebron Buildings Renovation Association, and a group of owners of rights in the land included in the requisition order. The petitions attack the legality of the requisition order and allege that it is unreasonable in the extreme and disproportionate in view of the purpose for which it was made, in view of the severe harm to the property of the owners of rights in the land along the route and in view of the planned harm to the buildings which have an unique archaeological value. It is alleged that the order was issued by the area commander for improper reasons, and the security reason that was given for making the order is a smokescreen for a predominantly political motive whose main purpose is to create territorial continuity between Kiryat Arba and the Machpela Cave by means of establishing a promenade that will, in the future, allow the expansion of Jewish settlement in the area. In this regard, it was alleged that there is no real objective connection between the attacks that occurred in the area and the measures planned within the framework of the requisition order, including the demolition of the houses, and since the area governed by the order was previously declared a closed military area and was emptied of its inhabitants, it is not required for security purposes. The petitioners from among the inhabitants of Hebron emphasized in their arguments that the implementation of the order is likely to lead to the destruction of an important part of the historical city of Hebron, which includes buildings from the Mamluk period and other houses intended for conservation, and that the antiquities law that applies in the area does not allow such activities for archaeological reasons. This claim was supported in a professional opinion given by persons involved in the conservation of ancient buildings and in an expert architectural opinion.

It was also argued by the petitioners that the requisition of the land and the demolition of the buildings governed by the order is contrary to international law that requires the area commander to exercise his authority to ensure order and security in the occupied area within the framework of article 43 of the Hague Convention of 1907 (hereafter — the ‘Hague Convention’) and is contrary to article 53 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter — the ‘Geneva Convention’) which prohibits the destruction of the real estate assets of civilians in an occupied area unless this action is essential and required for military operations. The requisition order is also contrary to the international law that governs the conservation of archaeological assets. According to their position, the order also does not satisfy Israeli constitutional law, because it results in an unbalanced result when weighing the right of the worshippers to realize their freedom of religion and worship against the right of the landowners along the route, who are entitled to protection of their property. The owners of the property rights among the petitioners also argue that their right to be heard and to challenge the legality of the order before the area commander was not upheld.

The original position of the State

4.    In the original response of the State to the petitions, it was argued that the sole purpose of the requisition order was security-oriented, and it did not serve as a disguise for achieving any other purpose. It was made in direct response to the continuing risk of terrorist acts, which consistently threatened the Jewish inhabitants who used the worshippers’ route, and in view of the responsibility of the IDF commander to ensure their safety. In order to increase security measures along the route, discretion was exercised carefully and various alternative ways were considered for the pedestrian passage of worshippers to the Machpela Cave on Sabbaths and festivals, and the most strenuous efforts were made to minimize, in so far as possible, the harm to the local inhabitants and the owners of rights in the land adjoining it. Eventually it was found that using the route was the most appropriate solution, as compared with the other options, in view of security needs on the one hand, and the need to restrict the extent of the harm to the local inhabitants on the other.

In response to the petitioners’ claim that their right to challenge the order before the area commander was not upheld, it was argued that the proper steps were taken to make the requisition order known to the owners of rights concerned. A reasonable period of time was allowed for submitting objections, but no such objections were submitted during the time allocated for this before the filing of the petitions.

In the normative sphere, it was argued that the authority of the military commander to requisition land in the occupied area is based on article 43 of the Hague Convention, which establishes a duty to maintain security in the occupied area, and on the proviso in article 23(g) of the Convention which provides a qualification to the prohibition against the demolition of enemy property when this is required for combat purposes. Article 52 of the Hague Convention allows land to be requisitioned for the purpose of ensuring order and public security even when there is no combat, and this also serves as a basis for the action that was carried out. The duty to conserve cultural assets that is enshrined in international law does not preclude recognition of urgent security needs that in certain circumstances override the duty to conserve cultural assets as aforesaid. By virtue of these sources, the area commander is authorized, and even obliged, to protect the security of the pedestrians on the worshippers’ route, and the making of the requisition order falls within this authority and responsibility. This order satisfies the constitutional test in view of the security needs required along the route within the framework of the worshippers’ right of worship, and the inevitable harm to the property of the petitioners as a result is proportionate in view of the fact that we are concerned with buildings that were abandoned some time ago, and in view of the existence of a right to financial compensation for this injury. The action of the IDF commander reflects a proper balance between the various values involved in this case, and it is essential to the public interest, it is reasonable and proportionate, and there are no grounds for intervention in order to change it.

The sequence of proceedings

5.    On 18 December 2002, an order nisi was made in the petitions, whereas an interim order that prohibited the demolition of buildings in accordance with the requisition order was restricted so that it would not apply to the northern part of the route up to the crossroads. Within this framework, additional time was given to the owners of the rights to object to the requisition order. Of the 13 owners of rights in the houses that were schedules for demolition under the original order objections were filed with regard to six buildings. One building that was found to be inhabited was excluded from the requisition order.

Before a decision was made with regard to the petitions, the area commander was asked by the court to reconsider other possibilities for the plan of action under the original order, in order to minimize the harm that it was expected to cause the inhabitants of the neighbourhood, such as sealing houses instead of demolishing them, stationing soldiers in order to protect the route when pedestrians pass, directing worshippers to an alternative route, and the like.

Approximately six months after the decision of the court in this respect, the State gave notice, first, that other possibilities for the pedestrian route of worshippers to the Machpela Cave that do not use the worshippers’ route were reconsidered. These were found to be unsuitable, either because they involve too great a risk to the pedestrians, or because preparing the route requires greater harm to the property owners, or because they involve a risk of increasing friction between the Jewish worshippers and the Muslims who come to pray in the Cave. The great risk involved in such friction was discussed in the Report of the Commission of Inquiry on the Massacre at the Machpela Cave in Hebron (hereafter — ‘the Shamgar Commission Report’). In the opinion of the area commander, these defects make the other possibilities for the pedestrian route of the worshippers to the Machpela Cave on Sabbaths and festivals unsuitable, and the worshippers’ route remains the most reasonable option from the viewpoint of the conditions of the terrain and the scope of the measures required in order to safeguard the area.

In such conditions, the area commander decided that there was no alternative to increasing the security of the worshippers’ route itself as the pedestrian route for large numbers of pedestrians, and that for this purpose the requisition order was needed. He also decided, after a reconsideration, that the stationing of soldiers at security positions or the sealing of houses was insufficient, and the widening of the route and the unavoidable demolition of a small number of buildings were required. Notwithstanding, after a reconsideration, it was decided to reduce significantly the scope of the harm to the owners of the property in the area, as compared with the original requisition order. While the original order refers to the widening of the route to a total width of eight metres, according to the revised position a widening of the route to a total width of only 4 metres is sufficient. This width provides the minimum required to allow the passage of security vehicles in one direction. Even though, in the opinion of the area commander, such a minimal widening of the route involves a certain security risk in that it does not allow two-directional traffic of vehicles along the route, he is currently prepared to be satisfied with a more limited widening of the route that will allow only unidirectional traffic, in order to minimize the damage to the owners of the lands adjacent to the route. The reduction of the width of the route also involves a significant reduction in the number of structures that are scheduled for demolition. Whereas the original plan spoke of the demolition of 13 buildings, today the plan calls for a partial demolition of two buildings and a part of a third building that are situated at the ends of the route and are abandoned. The demolition will be carried out under professional supervision to protect, in so far as possible, important archaeological foundations and to restrict the extent of the harm to the buildings to a minimum. It is also planned to seal entrances to additional uninhabited buildings along the route, to install nets in inhabited buildings, to pave a part of a path that has not yet been paved in order to safeguard against the laying of mines, and to place lamp posts and guard posts along the route. With regard to the northern part of the route, the State undertook not to extend the route to more than two metres from the two sides of the road (court record of 23 November 2003). In order to make the aforesaid revisions to the original plan, an appropriate amendment of the requisition order was required.

The essence of the order in its limited format as it is brought before us for review is, therefore, the following: in the northern part of the route — widening of the road to an amount of two metres from each side; in the southern part of the route — widening the road to a total width of four metres; a partial demolition of two buildings and a part of an additional building; the requisition of parcels of land alongside the route, as required for the purpose of widening it.

Decision

Right to be heard

6.    The owners of the rights in the land claim that their right to challenge the validity of the requisition order before the military commander, before they filed their petition, was not upheld.

No-one disputes the existence of a right to be heard that is available to anyone who may be harmed by an executive act. There is no need to expand upon the importance of this right, which is firmly rooted in Israeli administrative law. However, in the circumstances of this case, the right of the petitioners to be heard was not violated. The order, according to its wording, regulates the details of how it should be published and the ways in which it should be delivered to the owners of the rights who may be harmed by its provisions. The provisions of the order were carried out in this respect. The requisition order was distributed in the area designated for the requisition, and it was affixed to each of the buildings scheduled for demolition. It was delivered to the mayor of Hebron and the legal adviser of the municipality. Copies of the order were deposited at the Hebron liaison office and at the other offices of the competent Israeli and Palestinian authorities in the area. The fact that the order had been made was announced in the media. In addition, a tour of the route in the order was made, with the participation of military personnel and representatives of the owners of the rights in the land, and time was given to those persons who were likely to be harmed to challenge the order before the area commander. Before filing the petitions, no challenges were filed within the time period fixed for this. Within the framework of the hearing of the petitions, additional time was given to the petitioners to file their challenges. At this stage of the proceedings, challenges were filed with regard to some of the buildings scheduled for demolition under the original plan. These challenges were examined by the State. In view of the aforesaid facts, the petitioners’ right to be heard and to file objections was satisfied within the framework of this proceeding.

Legality of the requisition order

7.    The requisition order that was made involves the requisition of private land and the demolition of buildings, and it constitutes a legal act that harms the petitioners’ property rights. The legality of this act should be examined within the framework of international law, local law and Israeli law that all apply to the actions of the area commander (HCJ 4212/02 Gussin v. IDF Commander [1], at p. 609; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2], at p. 382 {117-118}).

The question that must be answered is whether the requisition order, in its reduced version, satisfies the criteria required for its legality, or whether it suffers from a defect that justifies judicial intervention to set it aside or amend it. In considering this question, we will examine the source and scope of the area commander’s authority to make the order under discussion; we will consider whether there is a basis for the petitioners’ suspicion that irrelevant motives led to the making of the order; and we will scrutinize the various values and rights that conflict in this case — freedom of worship and the right of movement, the protection of human life, the protection of private property rights — in order to determine whether these were balanced against each other properly within the framework of the order, and whether the order satisfies the rules of constitutional law.

The area commander’s responsibility and scope of authority

8.    The executive powers of the area commander derive from several sources: the rules of public international law that concern belligerent occupation; the local law that prevails in the area, which is composed of the law prior to the military occupation and new local legislation that was enacted by the military administration; and the principles of Israeli law (HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 10; HCJ 6860/01 Hamada v. Israel Car Insurance Pool [4], at paras. 6-7). Within the sphere of international law, his actions are subject to the laws of war that determine what is permitted and what is prohibited for the commander of a military force who is responsible for an area under belligerent occupation (Ajuri v. IDF Commander in West Bank [2], at p. 358 {87}; HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria [5]; HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria [6]; Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 793). Within the framework of Israeli law, he is subject, inter alia, to the rules of public law, including the rules of natural justice and administrative reasonableness (HCJ 591/88 Taha v. Minister of Defence [7], at p. 52).

Israel’s belligerent occupation of the occupied territories is subject to the main norms of customary international law that are enshrined in the Hague Convention. The question to what extent the Geneva Convention applies in this sphere has not yet been finally determined, but the humanitarian principles have been adopted de facto by the State and the area commander, and therefore we will assume that they apply in our case (cf. Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 11).

The Hague Convention authorizes the area commander to act in two main spheres: the first is to ensure the legitimate security interest of the occupier, and the second is the ensure the needs of the local population in the area under belligerent occupation. The local population for this purpose includes both the Arab and Israeli inhabitants. The first need is a military need and the second is a civilian-humanitarian need. The first focuses on concern for the security of the military force that is occupying the area, and the second concerns the responsibility for preserving the welfare of the inhabitants. Within the latter sphere, the area commander is responsible not only for maintaining order and ensuring the security of the inhabitants but also for protecting their rights, especially their constitutional human rights. The concern for human rights lies at the heart of the humanitarian considerations that the area commander must consider. According to art. 43 of the Hague Convention, the force in control of the occupied area has the responsibility to take all the steps that it can to re-establish and guarantee, in so far as possible, public order and security in the area, while respecting the law in force in the area, in so far as possible. In carrying out his duty to maintain order and security, the area commander must therefore ensure the essential security interests on the one hand, and protect the interests of the civilian population in the area on the other (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 794). A proper balance is required between these two focal points of responsibility. Indeed, ‘the laws of war usually create a delicate balance between two magnetic poles: military needs on the one hand, and humanitarian considerations on the other’ (Y. Dinstein, ‘Legislative Authority in the Administered Territories,’ 2 Iyunei Mishpat (1973) 505, at p. 509). In his considerations, the commander must concentrate on the needs of the area; he should not take into account the concerns of the country that holds the area under belligerent occupation, as a result of which he is exercising his authority.

The authority of the area commander to make orders for security needs, including an order concerning the requisition of land, is established both in international law and in Israeli law. These orders are law in Judaea and Samaria (HCJ 2717/96 Wafa v. Minister of Defence [8], at p. 851; HCJ 69/81 Abu Ita v. Commander of Judaea and Samaria [9], at pp. 228-230).

Requisition of land

9.    The requisition of land may be an essential step in the realization of the area commander’s powers and responsibility. It may be required both in order to realize military and security concerns, and in order to realize the duty of the commander to protect the interests of the civilian population in the area.

The laws of war in international law prohibit the requisition or demolition of private property in an area under belligerent occupation unless it is essential for combat purposes. According to article 23(g) of the Hague Convention, the occupying power is forbidden:

‘To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’ (emphasis supplied).

Article 52 of the Hague Convention provides that no requisition of land shall be made in an occupied area, except for military purposes. This article has been interpreted broadly in case law as applying also to the need to requisition land in order to establish military positions and outposts, and also in order to pave roads for the purpose of protecting Israeli inhabitants living in the area (HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [10]; Wafa v. Minister of Defence [8], at p. 856; HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [11]).

Article 53 of the Geneva Convention prohibits the destruction of any real estate or movable property that belongs to an individual or to the State by the occupying force, subject to the following exception:

‘except where such destruction is rendered absolutely necessary by military operations.’

In J. Pictet’s commentary on the Geneva Convention (1958, at p. 302), he explains the nature of the aforesaid reservation as follows:

‘The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases “where such destruction is rendered absolutely necessary by military operations.” The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand. Furthermore, it will be for the occupying power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the occupying power to circumvent the prohibition set forth in the convention. The occupying power must therefore try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done’ (emphases supplied).

In the spirit of the aforesaid commentary, before he decides to requisition or to demolish civilian property in the occupied territory, the military commander is required by international law to exercise very scrupulous consideration. He is entitled to do this where essential military-security needs so demand, and when the requisition balances proportionately between the importance of the military need and the extent of the damage that is likely to be caused to the property owner by the requisition. Within the framework of this balance, he should consider, inter alia, the existence of alternatives that may prevent any harm to individual rights (Timraz v. IDF Commander in Gaza Strip [10], at para. 4; HCJ 834/78 Salama v. Minister of Defence [11]). The requisition of property as aforesaid will also be possible in exceptional cases where it is required in order to provide essential living requirements of the population living in the area; thus, for example, a need was recognized to requisition private land for the purpose of paving roads and access routes to various places in the area. In exceptional cases, a certain harm to private property may be possible for the purpose of providing a proper defence to other constitutional human rights of the population living in the area, where these conflict with the property right of the individual in a specific case. But it is always a condition for the legal validity of such harm that it satisfies the proper balance test which is required in accordance with the criteria determined by constitutional law.

Alongside the rules of international law, the rules of internal Israeli law that apply to the area commander require that the property of the inhabitants of the area may not be harmed unless such harm is intended to achieve a purpose which falls within his powers, and an essential need makes this necessary. This power, both from the viewpoint of international law and from the viewpoint of Israeli public law, should be exercised for a proper purpose, reasonably and proportionately, after a careful and measured balance between the necessity of the purpose that he wishes to achieve and the nature and scope of the harm involved in achieving it.

10. This court exercises judicial review of the legality of the discretion exercised by the area commander as someone who holds a public office by law. In this review, the court does not replace the discretion of the commander with its own discretion, and it does not make itself an expert in security and military matters in the place of the commander (HCJ 302/72 Hilo v. Government of Israel [13]). Even under international law the military commander has broad discretion to decide the scope of the necessity (C.C. Hyde, International Law (second edition, vol. 3, 1947), at p. 1802). The role of judicial review is to stand on guard and ensure compliance with the legal rules that determine the limits of the area commander’s discretion (Ajuri v. IDF Commander in West Bank [2], at para. 30; HCJ 619/78 El Talia Weekly v. Minister of Defence [14], at p. 512). We must be scrupulous when considering the legality of the discretion exercised by the area commander, including whether the considerations underlying his action are relevant, reasonable and proportionate, in view of all of the circumstances of the given case (HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [15], at p. 539).

Levels of scrutiny of the requisition order’s legality

11. The arguments of the petitioners necessitate an examination of the legality of the requisition order in its restricted format on two levels: first, whether the reason underlying the making of the order is a real security concern, or whether the motive for it is intended to achieve another purpose, such as creating territorial continuity between Kiryat Arba and the Machpela Cave for the purpose of strengthening the Jewish settlement in the area of Hebron.

Second, we must examine to what extent, assuming that the requisition order was made for relevant security reasons, the decision of the commander satisfies the constitutional balance test, in permitting harm to the private property of one person in order to allow proportionate security measures to be adopted for the purpose of helping to achieve the right of worship and prayer of another person at a holy place.

Purpose of the order to increase security measures and irrelevant considerations

12. According to the basic principles of administrative law, an administrative authority is obliged to exercise its powers on the basis of relevant considerations only. It must take into account facts and data that are relevant to the case, including relevant values and principles only. It is prohibited from considering an irrelevant consideration (HCJ 5016/96 Horev v. Minister of Transport [16], at p. 34 {183}; I. Zamir, Administrative Authority, 1996, at pp. 741-742). Taking an irrelevant consideration into account may result in the decision being set aside where it can be assumed that, had the irrelevant consideration not been taken into account, the decision of the authority would have been different (HCJ 390/79 Dawikat v. Government of Israel [17], at p. 20). Identifying the relevant considerations for exercising the authority is based on the purpose of the authorizing legislation (HCJ 5688/92 Wechselbaum v. Minister of Defence [18], at p. 824; HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [19], at p. 432).

The area commander denies the existence of a concealed political motive for making the order, and insists that the plan to widen the worshippers’ route, requisition the parcels adjacent to the route and demolish the buildings, all of which is included in the order, is essential for security needs and vital for the protection of the lives of the persons using it.

The action of the military commander in making the requisition order has the presumption of administrative propriety as long as no factual basis has been established to the contrary. In our case, no sufficient factual basis has been established for the claim that the considerations of the area commander in issuing the order in its narrow format were motivated by irrelevant considerations and a concealed purpose that is not really the addition of essential security measures on the worshippers’ route. The right of worshippers to walk from Kiryat Arba to the Machpela Cave on Sabbaths and festivals has not been denied. The commander, as the person responsible for the security of the inhabitants and public order in the area, and as the person responsible for protecting the safety of the inhabitants of the area — both Jews and Arabs — is of the opinion that it is essential to increase security measures along the worshippers’ route in order to protect the pedestrians who use it. This position is explained, inter alia, against the background of the large number of persons who use the route, and the major security risks involved in it in view of its topographic characteristics. This position is not prima facie unfounded and it is supported by bitter experience associated with the terror attacks that have occurred in the area of the route and which have claimed human lives. The position of the commander, prima facie, is reasonable from the viewpoint of logic and clear reasoning. No major effort at persuasion is required to prove the existence of a major security risk created by the passage of thousands of pedestrians in an area infamous for terror attacks, whose alleys are so narrow that a vehicle cannot pass along certain parts of them, and abandoned buildings next to it may serve as hideouts for terrorists. These topographic features justify, prima facie, the adoption of measures to increase the security of the pedestrians in the passage. They do not support the claim that an improper, concealed motive is what led to the making of the order. A separate question is to what extent, assuming that it is indeed a security motive that underlies the order, it satisfies the constitutional test as to the manner in which it balances between the freedom of religion and right of worship of the worshippers on the one hand, and the right of private property of the petitioners on the other.

Constitutional balance: realization of the right of prayer and worship in conditions of relative security against a relative violation of the right of private property

13. The essence of the requisition order is the adoption of security measures along the worshippers’ route in order to protect, albeit in a relative degree, the lives of the pedestrians on Sabbaths and festivals. In order to achieve this purpose, a requisition of land is required alongside the route, as well as a partial demolition of two buildings and a part of an additional building which are uninhabited. Is the military commander authorized to make a requisition order for the purpose of increasing the security of the worshippers who use the route, in order to allow them to realize their right to pray at the holy site under conditions of relative security, where this involves a violation of the right of private property, and does this satisfy the constitutional test?

Responsibility of the military commander for the safety of the inhabitants of the area

14. In addition to the responsibility of the area commander to ensure the security of the military force that he commands, he must ensure the safety, security and welfare of the inhabitants of the area. He owes this duty to all the inhabitants, without any distinction as to their identity — Jews, Arabs or foreigners. The question whether the residency of various parts of the population is legal does not come before us today for a determination. Their very residency in the area leads to the duty of the area commander to protect their lives and their human rights. This is part of the humanitarian sphere for which the military force is responsible in a belligerent occupation (HCJ 72/86 Zaloom v. IDF Commander for Judaea and Samaria [20]; HCJ 469/83 Hebron National United Bus Company Ltd v. Minister of Defence [21]; HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip [22]; Gussin v. IDF Commander [1], at para. 6). The duty of the commander to ensure proper living conditions in the area extends to all spheres of life and goes beyond security matters and immediate existential needs. It applies to the varied living requirements of the inhabitants, including medical needs, sanitation, economic concerns, education, social needs and other needs that people require in modern society. It applies also to measures required to ensure ‘growth, change and development’ (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 26). Within the framework of his responsibility for the welfare of the inhabitants of the area, the commander must also concern himself with providing proper protection for the constitutional human rights of the inhabitants of the area, within the limits that the conditions and circumstances in the area allow. Such protection applies to all the population groups that live there, Jews and Arabs alike. Included among the protected constitutional rights are the rights to freedom of movement, freedom of religion and worship, and property rights. Sometimes this protection requires a decision between conflicting human rights. Such a decision requires a balance that satisfies the constitutional test, namely the existence of a proper purpose and proportionality in the harm to one right in order to allow the relative realization of the other right. In making the requisition order, the area commander is seeking to increase the security measures for pedestrians on the worshippers’ route on their way to the Machpela Cave. Thereby he is seeking to allow the realization of their constitutional right to freedom of religion and worship in conditions that provide protection to life, albeit relatively. In doing so, a relative violation of the petitioners’ private property rights was necessary. Is the balance that was made a proper and proportionate one?

Freedom of movement and freedom of religion and worship

15. The inhabitants of the area have a constitutional right to freedom of religion and worship. This is the case for the Arab inhabitants and it is also the case for the Jewish inhabitants who live there. The inhabitants of the area also have the right of freedom of movement, by means of which it is possible to realize, inter alia, the right of access to holy places. The right of movement and access to holy places is of great constitutional strength (Horev v. Minister of Transport [16], at p. 49 {202-203}; HCJ 448/85 Dahar v. Minister of Interior [23], at p. 708; HCJ 2481/93 Dayan v. Wilk [24], at para. 17 {341}). In this case, the freedom of movement is closely associated with and incorporated in the right to realize freedom of religion and worship. It is a value that is intended to realize the right of Jewish worshippers to go on foot to the Machpela Cave on Sabbaths and festivals.

The freedom of worship as an expression of freedom of religion is one of the basic human rights. It is the freedom of the individual to believe and to act in accordance with his belief, by observing its precepts and customs (HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [25], at p. 277; HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 3267/97 Rubinstein v. Minister of Defence [27], at p. 528 {200}). This freedom is related to a person’s realization of his own identity. This freedom recognizes the desire of a believer to pray at a holy site. This recognition is a part of the broad constitutional protection given to the right of access of members of the various religions to the places that are holy to them, and the prohibition against injuring their sensibilities with regard to those places (s. 1 of the Protection of Holy Places Law, 5727-1967). The freedom of religion is regarded as a branch of freedom of expression in the sphere of religious belief. It was recognized by the legislator already in art. 83 of the Palestine Order in Council, 1922, and in the Declaration of Independence, which states that freedom of religion and conscience will be guaranteed to every citizen of the State. This freedom has been recognized in case law as a constitutional basic human right (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 454; Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 7128/96 Temple Mount Faithful v. Government of Israel [29], at pp. 522-523; Gur Aryeh v. Second Television and Radio Authority [25], at pp. 276-277).

The freedom of religion and worship is granted as a constitutional right to the population living in the territories, both Jews and Arabs. It is regarded as a constitutional right of supreme status that should be realized in so far as possible in view of the conditions prevailing in the territories, while protecting the safety and lives of the worshippers. Increasing the security measures for the pedestrians along the worshippers’ route is intended to allow Jewish inhabitants to exercise their constitutional right to pray at a holy site.

Prayer at the Machpela Cave: a constitutional right of worship of Jews and Moslems

16. According to Jewish, Christian and Moslem tradition, the Machpela Cave is the site where Abraham and Sarah, Isaac and Rebecca, Jacob and Leah are buried, and according to some non-Jewish traditions, Joseph too is buried there. According to the tradition, the building of the Cave is located on a burial plot that Abraham acquired in order to bury his wife, and there all the other patriarchs and matriarchs, with the exception of Rachel, were buried. Historical and archaeological research has not clearly discovered who built the building of the Machpela Cave, although most researchers attribute it to King Herod and associate it with the Idumeans (for an extensive survey of this subject, see the Shamgar Commission Report, supra, at pp. 95 et seq.).

The Machpela Cave was regarded as a holy site and a place of worship already in the period of the Mishnah, after the destruction of the Temple. Praying by Jews at the Cave is recognized today in decisions of the political echelon. In 1967 the government made several decisions regarding the reinstatement of praying by Jews at the Machpela Cave on Sabbaths, and it made arrangements for coordinating the prayers of Jews and Moslems at the Cave, together with proper security measures for protecting Jewish worshippers (Shamgar Commission Report, at pp. 99 et seq.). Later it was decided that Jews would be entitled to enter the Cave also on Friday evening, for the Sabbath Eve prayers. As of 1972, the areas of prayer in the Cave were determined anew in a decision of the government, and the areas for Jewish prayers were extended. This extension resulted from a growth in the Jewish settlement in the area, and the founding of Kiryat Arba, which increased the number of people wishing to pray at the Cave. On 4 August 1975, the government made a decision regulating the arrangements for entering and leaving the Cave, and the division of prayer times in the various areas, in order to reduce friction between Jewish worshippers and Moslem worshippers.

Over the years, the prayers in the Cave have, from time to time, been accompanied by violent friction between Jews and Arabs, which sometimes resulted in loss of life on both sides. The height of these conflicts occurred in the massacre at the Machpela Cave in 1994, when dozens of Moslem worshippers were murdered. Recognition of the Cave as a holy site for both Jews and Moslems led the government and the army, in coordination with the Moslem representatives, to determine arrangements that would allow those who wished to realize the right of prayer at the Cave to do so, whether Moslems or Jews. In this context, security arrangements were made to split the times and places for prayer between believers of the two religions, with the intention of ensuring that the basic rights of prayer of the two sides would be upheld (Shamgar Commission Report, at pp. 107 et seq.). After the massacre at the Machpela Cave, the Commission of Inquiry recommended that the arrangements for prayers at the Cave for members of the two religions should be maintained, with particular care to separate Jews and Moslems physically for security reasons, and with a reinforcement of security measures that were intended to protect the worshippers of the two religions against attacks of one group against the other.

The main conclusions of the Shamgar Commission concerned the prayer and security arrangements required in the precincts of the Cave itself. This case involves similar issues in the sense that it concerns aspects of the security of the Jewish worshippers on their way to the Cave, as a part of the realization of their right to freedom of worship at a holy site. But the premise is that freedom of religion and worship is not an absolute freedom but only a relative one. A balance must be found between it and other rights and values that are worthy of protection, including the value of private property (per President Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 455; A. Barak, Legal Interpretation, vol. 3, at p. 225). Against this background, the question before us is whether the need to ensure the safety of the worshippers justifies taking measures that include the requisition of land and the demolition of houses that are privately owned.

Property rights

17. The right of private property in the land and buildings that are the subject of the requisition order is a protected constitutional right. It is recognized in international law, including in the Hague Convention and Geneva Convention. It has achieved a constitutional status in Israel in s. 3 of the Basic Law: Human Dignity and Liberty (HCJ 2390/96 Karasik v. State of Israel [30] at pp. 712, 716; CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [31], at p. 641). The individual’s property right does not cea