Occupied territories

 

H.C. 69/81

           

BASSIL ABU AITA ET AL.

v.

THE REGIONAL COMMANDER OF JUDEA AND SAMARIA

AND STAFF OFFICER IN CHARGE OF MATTERS

OF CUSTOMS AND EXCISE

 

H.C. 493/81

 

OMAR ABDU KADAR KANZIL ET AL.

 v.

OFFICER IN CHARGE OF CUSTOMS, GAZA STRIP REGION AND

THE REGIONAL COMMANDER OF THE GAZA STRIP

 

 

In the Supreme Court sitting as the High Court of Justice

[April 5, 1983]

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

 

 

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

 

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

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

           

The High Court of Justice ruled:

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

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

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

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

 

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

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

 

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

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

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

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

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

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

 

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

 

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

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

 

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

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

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

 

 

Israeli cases referred to:

 

[1]       H. C. 390/79 – Dvikat et al. v. Government of Israel et al. (1980) 34 P.D. (1) 1.

[2]       H. C. 606/78 - Ayub et al. v. Minister of Defence et al. (1979) 33 P.D. (2) 113.

[3]       H. C. 61/80 – Haetsni v. State of Israel et al. (1980) 34 P.D. (3) 595.

[4]   H. C. 97/79 - Abu Awad v. Regional Commander of Judea and Samaria (1979) 33 P.D. (3) 309.

[5]   H. C. 802/79 - Samara et al. v. Regional Commander of Judea and Samaria (1980) 34 P.D. (4) 1.

[6]       H. C. 428/78 - Dahoud et al. v. Minister of Defence et al. (1978) 32 P.D. (3) 477.

[7]   H. C. 369/79 - Tabgar v. Regional Commander of Judea and Samaria et al. (1980) 34 P.D. (1) 145.

[8]       H. C. 337/71 - Almakdassa v. Minister of Defence et al. (1972) 26 P.D. (1) 574.

[9]       H. C. 302/72 - Hilo et al. v. State of Israel et al. (1973) 27 P.D. 169.

[10]     Cr. A. 336/61 - Eichmann v. A/G (1962) 16 P.D. 2033.

[11]     H. C. 698/80 - Kawasma et al. v. Minister of Defence et al. (1981) 35 P.D. (1) 617.

[12]     C.A. 25/55 - Custodian of Absentee Property v. Samara et al. (1956) 10 P.D. 1824.

[13]     H. C.146/76 - unpublished.

[14] H. C. 351/80 - Regional Electric Corp., Jerusalem v. Minister of Energy et al. (1981) 35 P.D. (2) 673.

[15]     H. C. /Bialer v. Minister of Finance et al. (1953) 7 P.D. 424.

[16]     H. C. 202/81 - Tabib et al. v. Minister of Defence et al. (1982) 36 P.D. (2) 622 .

[17] H. C. 256/72 - Regional Electric Corp., Jerusalem v. Minister of Defence et al. (1973) 27 P.D. (1) 124.

 

 

English cases referred to:

 

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

[19] Compania Naviera Vascongado v. S.S. "Cristina" et al. (1938) A.C. 485.

[20] A/G for Canada v. A/G for Ontario et al. (1937) A.C. 326.

[21] West Rand General Gold Mining Co. Ltd. v. The King (1905) 2K.B. 391.

[22] Grahame v. D.P.P. (1947) Cr. App. R 168.

 

Italian case referred to:

 

[23]     Ligabue v. Finanze (1952) 19 I. L.R. 616.

 

American cases referred to:

 

[24]     St. Louis v. The Ferry Co. (1870) Wallace 423.

[25]     The Paquete Habana (1900) 175 U. S. 677.

 

International cases referred to:

 

[26]     The Asylum Case (1950) I.C.J.R. 266.

[27]     Ville d'Anvers v. Germany (1925) 5 M.A.T. 712.

 

A. Ronen for the Petitioners in H.C. 69/81.

B. Gross for the Petitioners in H.C. 493/81.

D. Benish, Deputy State Attorney, for the Respondents.

 

JUDGMENT

 

ACTING PRESIDENT M. SHAMGAR.

 

1. The subject matter of the present petitions, heard together by the agreement of the parties, is the legal validity of the following two enactments:

            (a) Petition 69/81 deals with legislation regarding excise duty on local manufacturers in Judea and Samaria contained in Order No. 658 of June 2, 1976. (The Law of Excise Duty on Local Manufactures (Amendment No. 2) (Judea and Samaria) (No. 658), 1976) which came into force on July 1, 1976 as provided in sec. 6 thereof, and imposed Additional Excise tax in the said Region.

            (b) Petition 493/81 deals with legislation regarding Excise Duty on goods and services which was imposed in the Gaza Strip Region by Order No. 535 of May 10, 1976 (Excise Duty on Goods and Services (Gaza Strip) Order No. 535 1976) which came into force on June 1, 1976; and the Regulations relating to Excise Duty on Goods and Services and relating to the Keeping of Books and Accounts which were enacted under and by virtue of the said Order. [p. 206]

            As can be seen from the above, the two petitions deal with identical issues, namely the legality of the introduction in the Administered Territories of a tax similar to the Value Added Tax in force in Israel. Since there is no argument that a new type of tax rather than merely an alteration of the rates and methods of collection of an existing tax is involved, the formal differences between the respective Security Enactments in the said two Regions bears no factual or legal significance. The dispute is not about the form of legislation but about the basic question of the imposition of a new tax. This is also the reason for joining the two Petitions.

           

2. The Petitioners in Petition No. 69/81 own businesses in Bethlehem and Beit Sahur respectively, selling souvenirs and gifts. The tax was introduced, as I have said, in 1976 by Order No. 658 amending the Jordanian Excise Duty (or Fees) on Local Manufactures Law No. 16 of 1963. The implementing Regulations including those relating to keeping of books and accounts (Excise Duty on Local Manufactures (Judea and Samaria) (Order No. 31 (75)) 1976) came into force on August 1, 1976 in accordance with Regulation 98 thereof and the Excise Duty on Local Manufactures (Keeping of Accounts Regulations (Judea and Samaria) 1976, which came into force on the day of their publication). The Petitioners contend that the text of the Regulations is substantially identical to the parallel provisions regarding the operation of the Value Added Tax in Israel, 1975. One of the arguments was that until petition was made to this Court, the Regulations had not yet been duly published in the Official Gazette of the Military Government, i. e., in the Collection of Proclamations, Orders and Notices of the Regional Command of Judea and Samaria, but this argument was abandoned during the hearing.

 

            According to the Petitioners in Petition No. 69/81, the liability to tax from 1976 until the summer of 1980 was based on assessment alone as set out in the Petition:

           

"10a. From the summer of 1976 until the summer of 1980, representatives of the second Respondent used to send demands to the Petitioners every two months for payment of Additional Excise duty. These demands were based on assessment and the amounts were not final, but negotiable and subject to modification. In fact, they were modified on most occasions after negotiation with representatives of the second Respondent. The bi-monthly form according to which the Additional Excise duty was paid is similar to the form used in Israel at the same time.

            "b. The Regulations relating to keeping books of account and collection of the Additional Excise duty between 1976 and 1980 were a dead letter and were not applied to the Petitioners and others like them. The mode and character of payment during these years were as set out in para. 10a above.

            "c. The amount of Additional Excise duty paid by most of the Petitioners was similar but not identical. At the beginning it was a bi-monthly payment of a few hundred pounds by each Petitioner. [p. 207] In time, the amount grew until in the summer of 1980 it reached a figure of several thousand pounds for the most highly taxed among the Petitioners.

            "d. The Additional Excise duty, based on assessment and, as pointed out, negotiable and subject to modification - initially amounting to payment of a few hundred pounds and later to a few thousand pounds - which did not compel the Petitioners to keep accounts and records and the like was a tolerable nuisance, and the Petitioners saw no need to challenge its legality. Because of its relatively light character, they chose not to upset their good relations with the Respondents or to enter into a confrontation situation with them, especially since it was clear that this situation would continue for the foreseeable future."

           

            As mentioned above, the authorities in the middle of 1980 demanded that books be kept. As a result of this demand, commercial elements, together with the Mayor of Bethlehem, asked the Respondents not to impose this obligation on the merchants, claiming that they were not capable of carrying the burden, or alternatively, that implementation be postponed for a long period or until conditions in the Region were ripe to that end. Learned Counsel for the Petitioners, Mr. Abraham Renen, applied inter alia to the Legal Advisors of the Regional Command and requested the Respondents to abandon their demands regarding the keeping of books. He pointed out, inter alia, that all payments made by his clients since 1976 had been made through lack of choice, under protest, and should not be regarded as an admission of the legality of the obligation. The Respondents replied orally and in writing that they could not accede to the request. Since the Petitioners assumed, as they claimed, that in view of various contacts amongst themselves and others with the authorities, an arrangement could be reached over the dispute about the tax, their lawyer wrote a further letter and held other meetings with officers of the Administration. Finally, however, at the beginning of 1981, a negative reply was received, and the lawyer, under the circumstances, took it to be the last word. Hence the petition to this Court.

 

            The main submissions of learned counsel for the Petitioners were as follows: The Region where the Petitioners live and work is occupied territory and according to the rules of international law - or more precisely, in his view, according to Article 43 of The Hague Regulations of 1907, regarding the Laws and Customs of War on Land - the Military Commander must respect the existing law unless it is absolutely impossible to do so. In the present circumstances that is not the case. Furthermore, the Military Commander of the Region lacks the authority to impose a new tax on the residents of the area. In addition, the implementing Regulations include penal provisions which, he submits, are contrary to Article 64 of the Geneva Convention relating to the protection of Civilian Persons in Wartime, 1949, since none of the purposes enumerated in Article 64 exist for permitting the enactment of new criminal provisions.

           

            The new Excise duty is in the nature of a change in the Jordanian Excise Law because the Orders [p. 208] impose Excise Duty also on the rendering of services and on sales in shops, which were not included in the original Jordanian law.

           

            According to the Petitioners, purposes of the law are extraneous and invalid:

           

9. The motive of the first Respondent in amending the said Law and of the second Respondent in promulgating the Regulations is invalid. The first Respondent acted to promote his interest as Military Commander of Occupied Territory and to promote the interests of the State of Israel by which he is empowered to govern the Territory, in disregard of the needs of the local population. This is true in two respects: firstly, the gap in the standard between the population of the Region including the Petitioners and that of Israel, and the inability of the former to comply with the sophisticated requirements of the Value Added Tax in force in Israel; secondly, the said amendment was not intended for the benefit of the residents of the Region including the Petitioners. but the opposite.

           

10. The fact that the Additional Excise Duty provisions were not enforced for four years and remained a dead letter. together with the sudden decision to enforce them in the summer of 1980 at the height of debates on the future of the regional rule and its national identity, show that the Respondents acted and still act in this matter with the aim of promoting the political aims of the State of Israel in the Region and of bringing about the complete economic fusion of Israel and the Region by creating facts on the ground and implementing them. In doing so the Respondents exceeded their authority and acted on the basis of extraneous considerations and not in good faith.

           

11. The submission by the Respondents' spokesman that the imposition of the Added Excise Duty in the Region is necessary because of the close economic links between it and Israel and the assumption that not to impose it might merely harm the Region's economy is without substance and an attempt to pull the wool over the eyes of the persons involved. The harm incurred by the imposition of the Additional Excise Duty is greater than its benefit.

 

12. It is difficult to avoid the impression that the imposition of the Added Excise Duty in the Region and, much more, the present requirements that the payments be based on the keeping of books were additionally, if not mainly, intended to improve the efficiency of the collection of Value Added Tax in Israel, to close loopholes, and so forth. And if that is so, it is prohibited under the Hague and the Geneva Conventions.

 

            In view of the foregoing, the Petitioners claim that the Order No. 658 was ultra vires, and the Petitioners cannot be compelled to comply with its provisions.

           

3. Petition 493/81 was brought by four Gaza residents who were requested to pay Additional Excise Duty under Order No. 535 as above. The first of these Petitioners, who owns a car-repair garage, [p. 209] received a notice from the first Respondent on July 16, 1981, to pay duty as assessed, no tax return having been made by him. The second Petitioner is a scrap dealer and received a like notice on June 29, 1981. The third Petitioner, a dentist, received a notice to pay the tax on May 20, 1981; and the fourth Petitioner, who owns a grocery store, received a notice on June 29, 1981. The four Petitioners claim that the above Order and the Regulations made thereunder are void and without legal force because they are contrary to the rules of international law. Consequently, the demands for payment are equally void and without force. The Petitioners raised these contentions before the first Respondent, but the latter was unwilling to concede the argument even after their lawyer wrote to the Respondents to this effect.

 

            The point of departure of the Petitioners' application to this Court is that the rules of international law in general, and the 1907 Hague Convention and the Regulations appended thereto in particular, apply to the Administered Territory in which the Petitioners reside and bind the Military Commanders of the area. According to Article 43 of the Hague Regulations, all legislation, including new legislation, which is not designed for the public benefit is forbidden and has no legal foundation, whatever its purpose. As mentioned above, residents of the Gaza Strip are involved and the tax law that was in force during the British Mandate is the one that is applicable. When the Israel Defence Forces entered the Region on June 6, 1967, and took over its Administration, no Value Added Tax or Additional Excise Duty or any similar tax applicable to goods and services existed.

           

            The Petitioners argue that Article 48 of the Hague Regulations applies, and accordingly all that the Military Government may do is to adjust tax collection to existing legislation. It lacks authority to introduce new tax legislation even if for the benefit of the Region and its residents.

 

            In this connection, the Petitioners add that the new tax is indeed called Additional Excise Duty, evidently to associate it with the Excise duty that existed in the Gaza Strip during the Mandatory period. But the name given to the tax is irrelevant since the criterion is its nature, and in that respect, a new tax is involved. Although Excise duty on goods has existed in the Gaza Strip since October 15, 1967 by virtue of the Excise Duty on Goods (Gaza Strip and North Sinai) Order (No. 110) 1967, the legality of the Order and its implications are not an issue in this petition.

           

            The Petitioners also dispute the Respondents' anticipated plea that the tax will serve the residents of the Region and contend that its abolition will not harm the economy of the Region. In this connection they attach an opinion by Mr. Haviv Jirada, a Certified Public Accountant residing in the Gaza Strip, according to which there is no economic or social justification for introducing the tax in the Gaza Strip. [p. 210]

           

            In support of their submissions, the Petitioners presented to this Court an opinion by Professor Gerhard von Glahn, who is an authority on international law in general and more specifically on the Laws of War, and they ask this Court to adopt the views expressed in this opinion, according to which the enactment of Order 535 and the imposition of the tax is inconsistent with the Hague Convention and also prohibited thereunder.

           

4. (a) The affidavit in reply to Petition 69/81 was made by Colonel Ya'acov Katz, Deputy Commander of Judea and Samaria.

 

            The Respondents' first argument was laches; the tax was introduced in 1976, but the Petitioners did not see fit to challenge its legality for a period of four years. Hence, the Petitioners were perturbed not so much by the obligation to pay as by its vigorous enforcement and the insistence on compliance with the Regulations (including keeping records and making returns). This argument was based on the fact that the tax had been imposed a long time before and was actually being paid. The number of registered businesses in the Region on the date of the affidavit in reply was 14,500. Nearly all those in the category of the Petitioners in Petition 69/81 are claimed to be registered in accordance with the Order since 1976-1977. Incidentally, another like petition was presented (Petition 772/80); its argument was joined with Petition 69/81. There the Petitioners were marble carvers. But they withdrew their petition during the present proceedings.

            In 1980 the residents of the Region paid tax in the sum of 50,500,000 sheqels, but some 11.500.000 sheqels were repaid. All the tax revenue, that of Additional Excise Duty included, are earmarked to cover the necessary expenses of the services for the needs of the population of the Regions; and the Area Command, i.e., the State of Israel, channels further funds out of its own budget to provide for the needs of the Territories in excess of the taxes locally collected.

 

            Secondly, the Respondents contend that if the Petitioners' plea of illegality of the Order is rejected, their alternative prayer against the duty to keep books and accounts as required by the Regulations should also not be granted.

           

            (b) Regarding the legality of the Order it is claimed that the provision of the Hague Convention must be applied in the Region by adaptation to the conditions created there as a consequence of prolonged occupation, the establishment of close economic ties between the Region and Israel and with maximum consideration for the needs of the Region. In this regard the Respondents state:

           

The Additional Excise Duty was introduced in the Region when the Value Added Tax was imposed in Israel. Prior to the imposition of the tax in Israel, the authorities debated the question of whether, [p. 211] having regard for the very close economic links which had developed between the Territories and especially between the Region and Israel, there was occasion to introduce in the Region and in the other areas (hereinafter referred to as "the Regions") administered by the Israel Defence Forces a tax system similar to the Israeli one. To clarify the question, teams including economists and lawyers made economic surveys and reached the conclusion that for reasons related to the economy of the Regions, and to prevent serious harm to that economy, the tax was to be imposed with certain modifications and adaptations entailed by the difference between the economy of the Region and that of Israel. Accordingly, it was also recommended that, as was done in Israel, various purchase taxes imposed in the Region on various goods manufactured there could be reduced and abolished. To retain different taxation on similar goods manufactured in Israel and in the Regions might cause a significant widening of the gap between the price of those goods in Israel and in the Regions and necessitate a restriction in the flow of goods between the two. It might also necessitate the imposition of custom duties on the movement of merchandise.

            The practical effect of restricting the flow of goods and imposing customs duties would be a severe blow chiefly to the economy of the Regions, which was greatly dependent on the Israeli economy. In that respect, it must be borne in mind that most of the products of the Region are marketed in Israel inasmuch as Israel is the main market for the surplus goods manufactured or sold in the Region that are not required by the local population and not exported over the Jordan bridges.

 

The tax, in principle, was not introduced to increase the revenue of the Military Government but to allay the fear that economic relations between Israel and the Region might deteriorate; thereby, first and foremost, harming the Region and its residents. In this respect, the Respondents declared:

 

            "Having regard for the nature of the tax, the authorities who examined the matter took into account the fact that its non-imposition in the Region might entail further consequences:

            "(a) Exporters from the Region would not be entitled to the reimbursement of tax on merchandise purchased in Israel, which is made to Israeli exporters.

            "(b) Merchants and manufacturers in the Region who purchase merchandise and services in Israel would pay the full amount of the Value Added Tax in Israel but would be unable to deduct that amount when and if they sold their merchandise in the Region.

            "(c) The imposition of the Value Added Tax in Israel was part of a general reform of the indirect taxation in Israel which also included the reduction and the cancellation of several indirect taxes, especially the purchase tax. Not to operate a similar system in the Territories would lead to a situation in which the burden of indirect taxation [p. 212] would weigh more heavily in the Region than in Israel; for in Israel the aggregate amount of the tax included that which was reimbursable, whereas in the Region the purchase tax would be imposed on manufacturers and those providing services without the possibility of obtaining any reimbursement of the assessed tax on their purchases.

            "(d) A situation in which a purchaser of goods for manufacturing purposes in the Region pays purchase tax and is unable to obtain any reimbursement might with time even reduce the need of potential Israeli purchasers for goods and services for purchases of trade in the Region. From the point of view of the interests of the Region, these are only some of the practical repercussions of the failure to impose the Value Added Tax having regard to the economic realities which have been created between the Region and Israel."

           

            The Respondents deny that their sole purpose was to close the loopholes in the administration of the Value Added Tax in Israel. To avoid that, alternative arrangements could have been found, such as those prevailing between countries with separate economies. That, however, would have also harmed the economy of the Region as well as the welfare of its residents.

           

            Hence it is argued that even according to the rules of customary international law, the action of the Military Commander was legal and consistent with those rules. In that respect the Respondents took into consideration the following observations of E. H. Feilchenfeld, The International Economic Law of Belligerent Occupation Carnegie Endowment (New York 1971) 49 (hereinafter referred to as: Feilchenfeld), which state:

           

"If the occupant collects the taxes of the occupied State, such collection is to be 'as far as possible in accordance with the rules of assessment and incidence in force.' This provision applies to tax procedure and distribution of tax burdens. It is not a 'must' provision...

            "The provision would not seem to exclude, as has been asserted, taxation increases, particularly such changes as have been made desirable through war conditions or, in the case of extended occupation, general changes in economic conditions."

 

            The proceeds of the tax are earmarked for the local population, its needs and its welfare, as we have said. To ignore the new economic conditions would, according to Feilchenfeld, harm the administered territory and be in breach of the duties of the Occupying Power, under Article 43 of the Hague Regulations. The Respondents submit that according to Article 48 of the above:

           

"The provisions of the Hague Convention regarding taxes were based on economic conceptions [p. 213] prevailing at the end of the nineteenth century. According to these conceptions the provisions of the Convention relate to taxes with the covering of government expenditures in mind and solely from this aspect are questions of the budgetary deficit and surplus viewed. According to the views prevailing at the time, the Hague Convention did not relate to the imposition of taxes as an economic act intended to affect the economy, as is usual at the present time. For this reason, as a matter of fact, the principle embodied in Article 48 is also not applicable to indirect taxation. It can therefore be said that the Convention does not have in mind the specific problem of indirect taxes.

            "(b) Article 48, on the imposition of taxes, applied the principle set out in Article 43 to the maintenance of local law in conquered territory. Yet it was not formulated in absolute terms of not altering the law but only 'as far as possible.'

            "(c) When there is a clash between the rule that the local law must be kept intact and the duty to act on considerations of the maintenance and the promotion of the well-being of the inhabitants - the latter duty prevails."

           

            (c) As for the Regulations, the Respondents do not accept the argument that the Petitioners cannot carry them out in practice. The Petitioners own extensive and established businesses with large turnovers. Some of them engage in manufacturing and not only in retail trade. There are more than enough bookkeepers and accountants in the Region and in neighbouring Jerusalem; moreover the bookkeeping does not need special professionals since the relevant directives are not complicated. In view of the extensive trading of the Petitioners, their connections with Israeli businessmen and with import and export trade, there are no grounds for their claims that they are incapable of keeping the required records.

           

            (d) In answer to the plea that the Regulations were not duly published, the Respondents drew attention to the relevant provision regarding the mode of publication of Security Enactments as expressed in para. 6 of the Proclamation concerning Law and Administration (Judea and Samaria) (Proclamation No. 2) of June 7, 1967, in the Collection of Proclamations (Judea and Samaria) Order (No. 111) of 1967 and in the Interpretation (Additional Provisions) (No. 2) (Judea and Samaria) Order (No. 161) 1967. In addition to being published in accordance with the Security Enactments, the Orders were distributed to the Regional Chambers of Commerce and brought to the knowledge of various bodies to which they might be applicable. They were also published in the local Arabic newspapers and in special explanatory booklets. The fact that the law was not fully enforced in the past stemmed from the Respondents' desire to regulate the matter; they therefore acted in stages. This fact cannot be exploited by the Petitioners to exempt them from the obligation to pay the tax.

 

            (e) The Respondents' answer to Petition 493/81 was set forth in an affidavit submitted [p. 214] by Margalit Sagiv, Treasury Staff Officer in the Gaza Region. As to the argument of laches against the Petitioners, the Respondents went on to submit that the Petitioners should have applied to the High Court of Justice when they commenced business, at the latest, if they did so after the relevant Order and the Regulations came into force. The Regulations imposed a duty on all merchants in the Region to register and file returns, and these obligations applied to the Petitioners in the course of doing business from the time they commenced operations, irrespective of the liability to pay the tax. If the Petitioners had wished to question the legality of the Order, they should have done so at the first opportunity, i.e., if they were already in business when the legislation came into force, immediately on its application, and if they subsequently went into business, then as soon as they did so. The trouble is that they only petitioned this Court when measures of enforcement were taken against them; and their endeavours to avoid payment of the tax and compliance with the other obligations under the Order and the Regulations, therefore, cannot succeed. Furthermore, the Petitioners had the requisite standing for challenging the validity of the Order even before they went into business. As is pointed out in the reply of Respondents in this regard:

           

"The Respondents submit that because of the special character of the tax which is the subject of the Petition, its legality could have been attacked even without reference to the Petitioners being merchants in the sense of the Excise Duty Order. The Additional Excise Duty tax is one which a merchant may lawfully demand from a purchaser and is in practice paid by the purchaser, or the recipient of services (Excise on Goods and Services (Gaza Strip) Regulations (No. 5)). For this reason it can be said that upon the tax being imposed in the Gaza Region, every resident who became liable to pay the tax as a purchaser was entitled to question its legality."

 

Moreover, if the Petitioners claim that the fiscal legislation should have remained in its 1967 form, their delay is even more significant since the Excise on Goods (Gaza Strip and North Sinai) Order (No. 110) 1967 was published as early as October 1967 and was amended in 1971. That is, the Order of 1976, the subject of this Petition, replaced the arrangements regarding indirect taxation introduced by Order No. 110 and Order (No. 412) of 1971, Excise on Goods (Gaza Strip and North Sinai).

 

            (f) The Respondents in H. C. 493/81 completed their arguments by answering the argument of delay, pointing out that regarding commencement of business by the Petitioners:

           

"The first petitioner, Omar Abdu Kadr Kendil, started a car-repair business on April 1, 1980. The second Petitioner, Fadal Abed El Halak Algrosha, a dealer in second hand merchandise, began business on April 1, 1981. The third Petitioner, Amad Hana Brabada, a dental practitioner, started to receive patients in his private clinic in January 1981. The fourth Petitioner, Metil Ismail Abdu, has run a small store for the sale of dairy products, soft drinks [p. 215] and cigarettes since the beginning of 1980. Accordingly, as far as the Petitioners are concerned, the Excise Order and the regulations made by virtue thereof apply only from the time they began their businesses."

 

            The Petitioners argue that they had no standing in this Court before they were obliged to pay tax, unless they already came within the definition of merchants. For an interest to arise which would give standing in matters of taxation, some material financial interest must have crystallized for one who wishes to appeal to the court and complain that he is injured by the provisions of the law. The Petitioners contend that their cause of action arose only when they received assessment notices. In the wake of these notices their lawyers approached the Respondents and shortly thereafter presented the petition. The Petitioners argued that had they petitioned the Court as soon as they had started business it could be assumed that this Court would have ruled that they were premature. The argument is that there is no foundation in the Respondents' submissions that the Petitioners had in the past collected from their customers sums which constituted the tax. This is a fact to be proved by the Respondents, and they failed to do so. Moreover:

           

"The task of the High Court of Justice is to review the legality of the actions of the Government and Administration, and of the actions of the Respondents since they form a part of the general Governmental system. As such, can it be assumed that this Honourable Court will condone persistent illegality for the sole reason that it has persisted? Moreover, the thesis herein propounded for consideration before this Honourable Court is that the whole doctrine of laches is totally inapplicable when a petition is directed against the validity of a law, which from the viewpoint of the Petitioners, as this Court has held not once, is primary legislation. This is true especially in this petition, where the Petitioners challenge the very legality of the Law. The Respondents' affidavit itself regarding the considerable sums received for Excise Duty indicates the need to abolish the tax if this Honourable Court indeed finds that its very basis is illegal according to international law."

 

            They also argue that the plea that they kept silent when Order 110 was enacted in October 1967 has no foundation, since that Order did not deviate from the rules of international law.

           

5. This Petition calls for an enquiry of many stages, embracing both the basic facts about the nature of the legislation in force before the introduction of the Additional Excise, as well as of the new tax, in order to establish whether it contributes to changes in the existing situation, and the nature of these changes.

 

            On the basis of these two fundamental levels - which involve findings of fact - we shall examine the legal significance [p. 216] of the legislation. In other words, if what is concerned is the variation of an existing tax or the introduction of a new tax system, we shall examine the rules applied by this Court for testing the legality and validity of the legislation enacted by the Military Government in the territories administered by Israel. Having regard for the character of the mode of decision-making of this Court in similar cases, we agree that we must bear in mind the Laws of War which are part of public international law.

 

            The subject has two main aspects: first, the provisions regarding the modification of taxation or the introduction of new taxation; second, the guiding rules regarding the amendment of existing law in general.

           

            In short, we shall proceed to examine the following:

           

(1)   the legal situation existing on the eve of the entry of the Israel Defence Forces into the Regions and the enactment of Order 658 or Order 535, respectively.

(2)            the rules applied by this Court in similar questions.

           

6. The first datum is the relevant legislation which was in force in Judea and Samaria on the eve of the entry of the Israel Defence Forces and, apart from that, the law that was in force before the introduction of the new Orders which constitute the subject matter of this Petition. We shall first address ourselves to the main legislation dealing with our problem.

 

            (a) Jordanian Law: According to the legal and administrative orders that prevailed in Judea and Samaria following their annexation by the Kingdom of Jordan by virtue of declarations and acts having legal consequences, commencing on April 1, 1949 and terminating on April 24, 1950, (the validity of which under the rules of international law is not our concern here), and according to the Jordanian Laws and Regulations Law introduced in both banks of the Jordan Hashemite Kingdom on September 16, 1950, the law which was in force in these territories, before the entry of the Israel Defence Forces and their assumption of control, namely the Temporary Dues on Local Manufacturers Law (No. 16) of 1963, applied in these Regions.

           

According to sec. 2 of the said Law, its provisions apply to all merchandise and material intended for consumption, use or any other purpose, in any product manufactured or made, wholly or partly, in the Jordan Hashemite Kingdom, from local or imported components, if no other tax is due on the merchandise or material under any other enactments. Local Manufacturers Dues will apply to such merchandise or material according to classification and with modifications as shall be introduced from time to time by Regulations made by the Council of Ministers with the King's approval. Sec. 4 of the Law provides that these classifications and rates are to be amended as the need arises. [p. 217]

 

            Incidentally, some of the Petitioners in Petition 69/81 admit that they are also engaged in manufacturing.

           

            In the field of excise and other indirect taxation, a Consolidation of Excise and Additional Taxes levied on Merchandise Imported, Exported or Produced Locally, Law (No. 25 of 1966) applied. As the name indicates, this Law consolidated Excise and Additional Taxes levied on goods which were imported, exported or produced locally. It provided for the conversion of the taxes and excise levied up to that time by a series of Laws into a uniform tax to be levied by the Customs, and for distribution among the bodies for the benefit of which it was collected, according to rules which should have been made by the Council of Ministers. The following are the laws that were replaced: Law No. 20 of 1949; sec. 8 of the Customs and Excise Law of 1962; sec. 49 of the Municipalities Law of 1955; sec. 3(c) of the Social Services Law of 1953; sec. 2(a) of the Sports Town Tax Law of 1963; sec. 2 of the Jordanian University Law of 1964; decisions of the Council of Ministers in accordance with sec. 5 of the National Guard Tax Law of 1954; Regulations 2 (1) to (4) of the Regulations made in 1950 under Law No. 11 of 1948. The Council of Ministers was empowered to alter the method of tax collection, to raise taxes within the limits set out in sec. 3 of the Law or to reduce them, and even to grant exemptions from payment.

           

            During the Jordanian period other relevant Laws were applicable: the Salt Law (No. 16 of 1950); the Production of Matches Law (No. 59 of 1951); the Stamp Duty Law 1952 (No. 27 of 1952); the Tobacco Law 1952 (No. 32 of 1952); the Intoxicating Beverages Law 1953 (No. 15 of 1953); the Excise on Petroleum Products Law 1960 (No. 63 of 1960); and the Customs and Excise Law 1962 (in one of the orders, Excise is called "Customs duties"). The only British Mandatory act that remained in force was the Banderolle Law of 1927 which had not been repealed or amended by any Jordanian Law.

           

            (b) Legislation of the Israeli Government: Three of the provisions of the Law and Administration (Judea and Samaria) Proclamation (No. 2) which came into force on June 7, 1967 and fixed the legal principles to guide the Israeli Military Government have relevance in the present context:

           

(1) The Law in existence in the Region on the eve of the entry of the Israel Defence Forces on June 7, 1967, was to remain in force in so far as it was not inconsistent with the said Proclamation or any Order made by the Regional Commander of the Israel Defence Forces, and with such modifications as result from the establishment of the Government of the Israel Defence Forces in the Region (sec. 2 of the proclamation).

   

(2) All powers of government, legislation or administration respecting the Region or its residents were vested in the Regional Commander of the Israel Defence Forces to be exercised by him or by a person appointed by him for that purpose or acting on his behalf (sec. 3(a) of the proclamation). [p. 218]

   

(3) Taxes, levies, fees and payments of any kind payable to central government institutions which had not been paid by June 6, 1967, were to be paid, as from the establishment of the Government of the Israel Defence Forces, to the said Commander of the Israel Defence Forces (sec. 5 of the proclamation).

           

            (c) Assumption of powers: According to the Appointments Under the Customs and Excise (Judea and Samaria) (Law No. 31) 1967 which came into force on June 27, 1967 (see also: the Appointments under the Customs and Excise (Judea and Samaria) (Amendment No. 1) Order (No. 75) 1967), the powers of the Jordanian Government and its agencies according to all the above Customs and Excise Laws, including Law No. 16 (as stated in sec. 1(1) of the Order) were vested in the Officer appointed in accordance with the above-mentioned Order. The appointment was to be made within the scope of the powers defined in sec. 3(a) of the above Proclamation, as set out above.

           

            (d) Customs: Under the Regional Customs Order (Judea and Samaria) (No. 96) 1967 dated August 15, 1967, the whole Region was declared as one Customs Region. Under the Customs Tariff (Judea and Samaria) Order (No. 103) 1967 of August 27, 1967, by virtue of the Jordanian Law of Customs and Excise Law 1962, new rates of customs were imposed on all merchandise imported into the Region, including imports from the Jordanian Kingdom but excluding imports from Israel. Goods that were imported into the Region from Israel, on which customs had been paid, were to be exempted from payment of customs and excise under the other Customs and Excise Laws mentioned above. In the preamble to Order No. 103, the grounds of its enactment were set out as follows:

           

"...Steps must be taken to maintain orderly commerce in the Region and to help the residents of the Region market their goods by way of free trade so as to improve the economy generally and especially to establish a financial base for developing the economy of the Region;

            "...This is necessary for the purpose of maintaining supplies, essential services and orderly government in the Region."

           

Customs duties were imposed under sec. 3 of the Order as follows:

 

(a) Customs duties shall be levied on goods brought into the Region by any person.

(b)        (1) The customs duties shall be levied at a rate determined by regulations made by the Appointed Officer and shall be a fixed amount or a certain percentage of the value of the goods, or in any other way, as may be prescribed; however, the Appointed Officer may exempt certain persons or certain goods from customs duties;

            (2) Regulations made under paragraph (1) shall be kept for reference in the Regional Customs Offices, the Regional Customs Stations, Municipal Offices, Chambers of Commerce and/or any other place prescribed by the Appointed Officer. [p. 219]

(c) Goods imported into the Region from Israel shall be exempt from payment of customs unless one of the following applies:

            (1) the goods were imported into Israel subject to certain conditions;

            (2) the goods were exempt from payment of tax, customs or other compulsory payment, subject to certain conditions, when they were imported into Israel, manufactured in Israel or delivered in Israel.

            (3) ……

(d) Notwithstanding sub-section (c) the following shall be exempt from customs:

            (1) goods as provided in paragraphs (1) and (2), if the conditions of import or of exemption were fulfilled in the Region and as long as those conditions are fulfilled;

            (2) goods as provided in paragraph 3, if tax was paid in Israel on their acquisition or manufacture.

(e) ...(the emphasis is mine - M. S.).

 

The expression 'goods' - includes services.

 

            The Customs Authorities (Judea and Samaria) Order (No. 309) of February 16, 1969 granted wide powers of implementation to the said Appointed Officer and to Customs and Excise officials.

           

            (e) Excise: The rates of excise on a long list of products were already fixed under the Order of July 6, 1967 and above-mentioned Dues on Local Manufactures Law of 1963. This Order was amended and extended from time to time .

           

            To the Excise on Locally Manufactured Merchandise (Judea and Samaria) Order (No. 31(1)) 1967, amended by the Appointed Officer by virtue of the powers vested in him by the said mentioned Appointments under the Customs and Excise (Judea and Samaria) Laws (No. 31) and sec. 4 of the Jordanian Excise on Local Manufactures Law of 1963, new excise rates were fixed and merchandise subject to Excise was classified; the duty was calculated at a percentage of the wholesale price or as a fixed sum or a combination of both (sec. 2 of the Order). The payment of Excise was imposed on the manufacturer (as provided in sec. 2 of the 1966 law), and as stated in sec. 3 of Order No. 31(1), it

           

"shall be paid when the merchandise leaves the place of manufacture. However, the Appointed Officer may defer the time of payment or allow the payment to be made in instalments on such terms as he shall prescribe."

 

            The Order also deals with the marking of merchandise, setting out a list of products and other powers. The Order became effective on July 16, 1967. [p. 220]

           

            According to the Tobacco Law (Judea and Samaria) Order (No. 32) 1967 which came into effect on June 27, 1967, the rates of excise on tobacco were changed and an additional consolidated excise was imposed in reliance on the said Jordanian Consolidation of the Excise and Additional Taxes Law, 1966. The rates of excise were similarly changed in reliance on the Excise on Intoxicating Beverages Law (Judea and Samaria) Order (No. 38) 1967 of July 4, 1967.

 

            (f) Stamp Duty: Payments under the Stamp Duty Law were also changed from time to time (see Stamp Duty (Judea and Samaria) Order (No. 599) 1975 of July 6, 1975). The National Guard Tax which was part of the Stamp Duty was cancelled even earlier and became an additional Stamp Duty (the Levy of Additional Stamp Duty (Judea and Samaria) Order (No. 147) 1967, of October 18, 1967); this additional duty was parallel to the Jordanian National Guard Tax.

           

            (g) The Indirect Taxation (Overpayments and Underpayments of Tax) (Judea and Samaria) Order (No. 350) 1969, of December 2, 1969 introduced provisions for the reimbursement of indirect tax (customs or excise under the Customs and Excise Law as provided in the above-mentioned Order No. 31) paid in excess, and for the obligation to pay unpaid indirect tax, or tax reimbursed in error. This Order granted the residents of the Region new rights similar to those obtaining in Israel under the Indirect Tax Law (Overpayments and Underpayments), 1968.

           

            The Marking of Merchandise (Judea and Samaria) Order (No. 149) 1967, of October 22, 1967 granted the Appointed Officer powers to enact provisions for the marking of goods by those holding the same.

           

            (h) Levy on Stock: According to the Levy on Stock (Judea and Samaria) Order (No. 370) 1970, of January 22, 1970, the officer appointed to administer the Customs and Excise Laws (Order No. 31 of 1967) was empowered

           

....by notice in writing, to impose a levy on stock held by a merchant for the purposes of his business (see. 2 of the Order).

 

            'Merchant' is defined as a person who engages in the sale of merchandise under sec. 3 of the Order as amended by the Levy on Stock (Judea and Samaria) Order (No. 615) 1975, which came into force on September 10, 1975:

           

The Appointed Officer may prescribe by notice in accordance with sec. 2:

(1) merchandise that is subject to excise;

(2) rate of tax applied to said merchandise; [p. 221]

(3) the time for payment of the levy;

(4) the method of determining the stock of merchandise subject to the levy;

(5) the obligation to keep books for the purpose of determining the levy and its collection.

           

            As we have seen, the Security Enactments prescribed the payment of excise according to new classifications and rates, and since 1970 also enabled the introduction of a levy on stock, as dictated by the economic conditions prevailing at that time.

           

            (i) On April 4, 1976 the Amendment of the Excise on Local Manufactures Law (Judea and Samaria) Order (No. 643) 1967 came into force, amending the 1963 Jordanian Excise on Local Manufactures Law and widening the circle of those paying excise by including the merchants and services specified therein. There is no need to go into the details of the provisions of this Order since soon after its enactment it was repealed by Order No. 658, which is the subject of this Petition.

 

            7. Order No. 658, which came into force on July 1, 1976, replaced sec. 2 of the Jordanian Excise on Local Merchandise Law of 1963, as follows:

           

"2. (a) Excise shall be levied on transactions at the rate fixed by regulations of the Appointed Officer.

            (b) The Appointed Officer may prescribe the rate of Excise as a percentage of the price of the goods or services, or as a fixed amount, or both.

            (c) In addition to the Excise imposed under sub-section (b), the Appointed Officer may, by regulation, prescribe additional Excise at a uniform rate of the price of the transaction.

            (d) In sectors where, in the opinion of the Appointed Officer, the price of a service cannot be ascertained, he may, by regulations, impose Excise as a percentage of the salary or wage paid by a dealer and of the profit he derived.

            (e) The following are liable for the payment of Excise:

         (1) on a sale the vendor;

         (2) on provision of services - the provider of the service.

            (f) For the purposes of this section:

            'Excise' means Ordinary Excise and Additional Excise. 'Ordinary Excise' means Excise levied in accordance with sub-section (b).

            'Additional Excise' means Excise levied in accordance with sub-section (c).

            'the Appointed Officer' means the officer appointed for the purpose of the Appointments Under the Customs and Excise Law (Judea and Samaria) Order (No. 31) 1967." [p. 222]

           

            Accompanying this Order were various regulations regarding enforcement, prescribing details of the transactions on which Excise was to be levied, the rate of the tax, the keeping of books and so forth, the details of which are not relevant here. The Order and its regulations, as amended from time to time, compose two main departures from the Excise arrangement hitherto prevailing:

           

            (a) Excise was not applied only to production or manufacture;

            (b) a new system of tax collection was introduced, similar to that for collecting Value Added Tax in Israel.

           

            The imposition of an indirect tax on merchandise itself was not an innovation since, as we have already seen, Jordanian Law had in substance introduced such a tax by enactments made before the entry of the Israel Defence Forces into the Region and its assumption of control, principally in the above-mentioned Laws of 1962, 1963 and 1966 which replaced British Mandatory Law that had until then been in force in the West Bank (as opposed to Transjordan). These laws, moreover, did not establish a rigid and inflexible framework of definitions of the merchandise liable to tax or of the rate of tax. We have already mentioned sec. 4 of the Temporary Dues on Local Manufactures Law of 1965 and should also add here sec. 3 of the Consolidating of Excise and Additional Indirect Taxes on Imports, Exports and Local Manufactures Law of 1966.

 

            In effect, these laws served as the basis for the Security Enactments made by the Commander of the Israel Defence Forces as early as 1967. They were intended to be concurrent with the removal of customs barriers between the Administered Territories and Israel and the inauguration of a bilateral free flow of goods and services that began in 1967 with the removal of the original restrictions on the transfer of goods (the Closed Areas Prohibition on Transfer of Goods (Judea and Samaria) Order (No. 49) of 1967). These laws were of general and comprehensive scope and only applied during the period of formation and consolidation of the Military Government. In other words, as emerges from the data before us, the fixing of the new rates of Excise, Customs and levies on stock mentioned above and the new classification of taxable goods, were a natural result of the removal of the economic barriers between Israel and the Administered Territory and led to the introduction of uniform rates of indirect taxes in the two areas.

           

            That means that the system of indirect taxation introduced by the Excise on Local Manufactures (Judea and Samaria) Order (No. 31(1)) 1967 and its effects were similar to those in Israel under the Purchase Tax (Merchandise and Services) Law 1952. (See M. Herzberg, Indirect Taxation Enactments in the Administered Territories (Hebrew), Tax Quarterly (1970) 347). The tariff imposed was identical with the one prevailing in Israel and the parallelism was constant [p. 223] as is evident from the periodic alterations of the tariff. The process was made fully manifest in the provisions of the Excise on Local Manufactures (Imposition of Tax and Rates) Order (No. 31(39)) 1969 which were congruent with the provisions in force in Israel at that time under the Purchase Tax Laws. The provisions for marking merchandise paralleled those in force in Israel (Official Gazette - Subsidiary Legislation 1466, (1968) 1965).

           

            As a result, manufacturers in the Region were obliged to pay the same indirect taxes as vendors in Israel. The same trend was demonstrated in Order No. 103 mentioned above, relating to Customs tariffs, which were in the main parallel to the indirect taxes imposed in Israel on imports, whether as customs duties, purchase tax or compulsory levy (levied in Israel under the Emergency Regulations (Compulsory Payments) Extension of Validity Law, 1970). A similar result was achieved regarding tobacco and intoxicating beverages by Orders No. 32 and 38 mentioned above.

           

            The legal and economic significance of the process herein described will be examined after the relevant legal provisions have been examined. It will then be possible to apply them as criteria in testing the legality of the actions taken. However, we can already reach the conclusion that Order No. 658 on which this Petition centres was enacted in the wake of consistent security enactments dating back to 1967. These security enactments were the result of the removal of barriers and the introduction of the free flow of economic relations in both directions. All these enactments were meant to strengthen the economy of the Region and, among other things, to eliminate the unemployment prevalent in the area before the entry of the Israel Defence Forces and during the initial period of the military administration, thus ensuring the livelihood and welfare of the population. The main objective of the security enactments was, therefore, to introduce arrangements and tariffs in the Administered Territories, which were parallel to those in Israel, so as to encourage mutual assistance between the two economies. The claim of the Respondents is, we may recall, that had they acted otherwise, it would have necessitated leaving the Administered Territories so tightly sealed as to prevent any economic link with Israel, a course likely to be most harmful to the economy of the Region, as we shall see later. The removal or continued maintenance of barriers between the Occupying Power and the area under Military Government is the prerogative of the Military Government whose decision cannot be contested so long as its action causes no significant damage to the economy of the administered territory. Incidentally, the same principle applies to the opening of bridges to enemy-held territory. The opening of the bridges between Israel and the Jordanian Hashemite Kingdom in both directions, prevented the choking of the economy of the Region and brought about a satisfactory economic situation, a fact which will obviously be significant when we examine the intention of the Military Government and the significance of its acts according to the criteria of the Laws of War. Furthermore, at this stage, we must again remember that what is involved is indirect taxation, including customs regulations and, as we shall see, many authorities on the subject of the powers of Military Government regarding taxation give the matter special status under customary international law. Even among those who argue for non-interference in the existing structure, [p. 224] there are some who admit the possibility of a different and distinct approach to indirect taxes and especially customs .

 

8. We now turn to Petition 493/81. Since the Petitioners are residents of the Gaza Strip, we shall examine the provisions of the law in force in that administered territory on the eve of the establishment of the Military Government by the Israel Defence Forces and then, at a second level, the security legislation enacted by the Israel Military Government.

 

            (a) Legislation from British Mandatory times: In the Gaza Strip, from the termination of the British mandate until the inception of the Egyptian Military Government, the law existing in Palestine on May 14, 1948, remained in force (see the Order of the Egyptian Military Governor, Official Gazette of the Gaza Strip, vol. 1, p. 17, and Carol Farhi, On the Legal Status of the Gaza Strip, Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem, vol. 1, 1982) 61).

           

            The Egyptian Military Governor indeed exercised his authority to publish Orders changing the existing local law that was in force when the Egyptian army conquered the Region in May 1948, in the course of the War of Independence, but almost no substantial changes were made in tax law. Neither was there a policy of open economic bridges between the Gaza Strip and Egypt. As a result, compared to the differences between Egyptian law and the law in the Gaza Strip, the law in force in the Gaza Strip and that in force in Israel were identical or at least basically similar in view of sec. 11 of the Law and Administration Ordinance 1948. A considerable part of Mandatory tax laws still in force in Israel also remained in force in the Gaza Strip: The Customs Ordinance; authorizations in Matters of Import, Export and Customs (Defence) 1939; the Tobacco Ordinance, sec. 3 of which imposed excise on tobacco; the Cement Ordinance 1944. sec. 5 of which imposed excise on cement; the Stamp Duty Ordinance; the Income Tax Ordinance 1947; the Excise on Matches Ordinance; the Excise on Playing Cards Ordinance; the Intoxicating Beverages (Manufacture and Sale) Ordinance, sec. 3 of which imposed excise on such beverages and the Methylated Spirits Ordinance. Needless to say, in 1967 these laws did not include the amendments made in their Israeli counterparts by the Israeli legislator and of course were not given as a "New Version."

           

            (b) The Egyptian Military Government: the Income Tax Ordinance was amended (Order No. 295 of April 1. 1954; Law No. 3 of 1962 of October 9, 1962; Law No. 14 of 1962 of December 4, 1962 which inter alia imposed on residents living permanently outside the Region. "compelled by their work outside the Region." a duty to pay income tax; Law No. 15 of 1962 of December 4, 1962; Law No. 16 of 1962 of December 4, 1962; Law No. 18 of 1962 of December 15, 1962; and Law No. 24 of 1965 of September 4. 1965 and Order No. 332 of April l, 1954 (which replaced certain provisions of the Customs Ordinance). [p. 225] But existing indirect taxes were not abolished so that the basic parallel between the tax in the Gaza Strip and that in Israel at the time of the establishment of the State, remained.

           

            (c) Enactments of the Israel Military Government: The Law and Administration Proclamation (Gaza Strip and North Sinai) (No. 2) of 1967, promulgated in the Gaza Region, was identical in text to the Proclamation promulgated in Judea and Samaria. the essentials of which have been mentioned above .

           

            (d) Excise: The Appointments under the Laws, Customs and Excise Laws (Gaza Strip and North Sinai) Order (No. 35) 1967 of July 12, 1967 confirmed all the powers under the said Laws given to the officer appointed as officer-in-charge by the Regional Commander. The term 'Customs and Excise Laws' was defined as follows:

           

"Customs and Excise Laws - all laws. including Legislation, Regulation Ordinances, Orders and Provisions regarding the Customs, Customs duties, Excise duties and all other taxes of any kind whatsoever, imposed on merchandise imported, exported and locally manufactured, tobacco, intoxicating beverages, petroleum products and any other products, as they were in force in the Region on June 5, 1967."

 

            Sec. 2 of the Excise on Goods (Gaza Strip and North Sinai) (No. 110) 1967 which came into force on October 15, 1970 stipulated that Excise shall be levied on merchandise specified in the addendum thereto at the rate mentioned therein.

           

            The Appointed Officer was empowered to alter the addendum by adding or deleting goods, changing or amending their descriptions or the rate of the Excise, by prescribing it as a fixed amount instead of a percentage of the wholesale price, or as an addition to the percentage.

           

            See. 3 of the Order provided that the manufacturer was liable for payment. Excise was to be paid to the Appointed Officer when the taxable merchandise left the place of manufacture, but he was empowered to defer the payment or allow it in instalments. The Order also included provisions for marking merchandise.

           

            Sec. 8 of the Order prescribed that all amounts received as Excise under the Order should be held in a special and separate fund placed under the supervision of the Regional Commander of the Israel Defence Forces. The purposes of the fund were defined as follows:

           

"9. The fund or any part thereof shall be expended solely in accordance with specific written instructions of the Commander of the Israel Defence Forces in the Region. After deduction of the expenses entailed in collecting the same in administering the fund, and in implementing the Order, the remainder shall exclusively serve the needs of orderly government and administration of the Region in maintaining supplies and essential services [p. 226] to the region and of covering the deficit of the Region."

 

            Order No. 110 was amended a number of times. Thus, the central provision of sec. 2 regarding the imposition of Excise tax and its rate (Gaza Strip and North Sinai) was altered by (Order No. 112) (Amendment No. 1) 1967; by (Order No. 251) (Amendment No. 3) 1969 (Gaza Strip and North Sinai); and (Order No. 362) (Amendment No. 7) 1970 (Gaza Strip and North Sinai). One result was that the rate of Excise was fixed as a percentage of the wholesale price of the goods. Sec. 3 was amended to render the manufacturer or any other person whom the Appointed Officer shall determine liable for payment (Gaza Strip and North Sinai) (Amendment No. 2) (Order No. 120) 1967. However, the provision establishing the fund and its purposes was not amended.

           

            The Excise on Goods (Gaza Strip and North Sinai) Order (No. 412) of December 15, 1971 which came into force on January 30, 1972 repealed the said Order No. 110 and substituted new, complete and co-ordinated provisions regarding Excise on Goods. This Order was repealed by the Excise on Goods and Services (Gaza Strip) Order (No. 535) of May 16. 1976 which came into force on June 1, 1976 and introduced the Additional Excise in the following terms:

 

            "Liability for Excise

2. Excise shall he levied on transactions at the rate prescribed by regulations made by the Appointed Officer.

 

Imposition of Excise

3. (a) The Appointed Officer may determine the rate of Excise as a percentage of the goods or services, as a fixed sum, or both.

            (b) The Appointed Officer may, by regulations, prescribe Additional Excise at a uniform rate of the price of the transaction in addition to Excise levied under sub-section (a).

            (c) In the sectors where, in the opinion of the Appointed Officer, it is not possible to ascertain the price of a service, he may, by regulations, impose Excise as a percentage of the salary or wages paid by the dealer and on the profit he has made.

            (d) The following are liable to Ordinary and Additional Excise:

         (1) on a sale - the vendor;

         (2) on the provision of a service - the person providing the service."

           

            Accordingly, Order No. 535, the subject matter of this Petition, continued to replace [p. 227] Order No. 412, which itself continued and replaced Order No. 110. The change effected by Order No. 535 was not meant to introduce Excise duty, which was already in effect, but to enable the imposition of Additional Excise duty as well as to lay down the procedures for its collection. Order No. 535 was accompanied by the detailed implementation of Regulations which we shall not specify; their main provisions were published in the Collection of Proclamations, Orders and Notices of the Commander of the Israeli Defence Forces in the Gaza Strip and North Sinai Region No. 44.

           

            (e) Miscellaneous provisions: Excise on tobacco was imposed by the Tobacco Excise (Gaza Strip and North Sinai) Order (No. 115) 1967 of November 1, 1967.

           

            The Excise on Stock (Gaza Strip and North Sinai) Order (No. 334) 1970 authorized the Appointed Officer to impose excise duty on stocks of merchandise held as inventory by a merchant for the purpose of his business.

           

            The Transfer of Goods (Gaza Strip and North Sinai) Order (No. 291) 1969 rendered the import of goods into the Region and the export of goods from the Regional conditional upon the granting of a permit.

           

            The Obligation to Declare and Report Wholesale Stock (Gaza Strip and North Sinai) Order (No. 23) 1967 obliged wholesalers to file a declaration of stock.

           

            The Stamp Duty (Gaza Strip and North Sinai) Order (No. 70) of 1967 contained provisions for the application of the Stamp Duty Law which had been in force since the British Mandate and granted powers to the Appointed Officer to prescribe the duties and rates of Payment.

 

            The Marking of Goods (Gaza Strip and North Sinai) Order (No. 168) 1968 conferred on the Appointed Officer authority to direct that goods be marked under the Customs and Excise Laws.

           

9. The fundamental trend of the Security Enactments in the Gaza Strip was identical to that described above in respect of Judea and Samaria, in so far as Petition 69/81 is concerned. The form of the Enactments was obviously adapted to those in force in the Gaza Strip at the inception of the Israeli Defence Forces administration and therefore any comparison of the Security Enactments of the two regions must take the relevant distinctions into account. The substantive provisions, however, are identical in form and meaning and make up the large part of the provisions of the Orders. They sought to bring about uniformity of Customs, Excise and Levies in the Gaza Strip and in Israel, having regard to the corresponding indirect taxation existing in Israel in the form of Excise, purchase tax and levies (under the circumstances described). This uniformity, which had already commenced in 1967 was also expressed, inter alia, in the said subordinate provision relating to wholesale stock returns and was, as already explained, a derived consequence of the free economic flow [p. 228] (with certain exceptions which obtained in Judea and Samaria and mainly concerned agricultural products; see in this connection Order No. 49 in Judea and Samaria and Order No. 291 in the Gaza Strip). There is, therefore, no need for us to repeat the purposes and trends, already explained in para. 7 of this judgment.

 

10        (a) Up to this point we have analysed the facts, for which purpose the main trends of the legislative development have been presented.

           

            We now proceed to the next question, which is the second stage of the inquiry of the present matter, namely: what are the criteria to be applied by this Court when testing the legality and validity of Security Enactments in administered territories?

           

            (b) The legal criteria by which the High Court of Justice tests the legality of an act of the Military Government has been repeatedly clarified in decisions of this Court. In Dvikat v. State of israell [1] at 13, Acting President Landau J. pointed out that the basic norm on which the structure of Israeli rule in Judea and Samaria has been erected - and which obviously applies equally to the Gaza Strip - is the norm of the Military Government. In other words, the law of the State of Israel does not apply to these Regions. The basic legal principles by which the Regions are governed, and the legal system, were established in June 1967 and are concisely expressed in Proclamation No. 1 regarding the assumption of power and Proclamation No. 2 of the Israel Military Governor, which are interpreted according to the rules of public international law. (See M. Shamgar The Law in the Territories Administered by Israel, Public Administration Jerusalem, vol. 8, 1968) 42.

           

            From the point of view of the bounds of the legal question posed by Proclamation No. 2 and the submissions in the Petitions, it is unnecessary to make enquiries regarding the legal standing of the earlier Administration that was replaced by the Israel Military Government. This matter was dealt with in Dvikat [1] at 13, in Ayub v. Minister of Defence [2] at 127 and see also Haetsni v. State of Israel [3] at 595 where Landau J. said in reference to Dvikat:

 

"The argument that Jordan did not possess sovereign rights in Judea and Samaria is an important plea voiced by Israel in the international arena. The consequence thereof is that the Fourth Geneva Convention does not apply to Judea and Samaria but that the Israel Government puts into operation the humanitarian provisions of this Convention voluntarily. This conclusion has not yet been tested in this Court (see Dvikat [1]) [p. 229] and at this time there is also no need to be concerned with it. It is true that Jordan never was the legal sovereign in Judea and Samaria but it does not follow that the Regional Commander could not by declaration give legal effect to the law in existence in the Region before the entry of the Israel Defence Forces. The question of sovereignty in Judea and Samaria under international law must not be confused with the right and the duty of the Military Commander to maintain public order in the Region, to assume his control there and to introduce the rule of law for the benefit of its residents. This right and this duty of his stem from the customary law of war as formulated in Article 43 of the Hague Regulations. This Court expanded on the Almakdassa v. Minister of Defence [8] where the then Acting President (Sussman) said:

           

"Article 43 above obliges the Occupying Power to respect the law that was in force in the administered territory unless he is absolutely prevented from doing so (at 581)...

 

"....In his article, The Observance of International Law in the Administered Territories, Israel Yearbook on Human Rights, vol. 1, p. 262, Meir Shamgar writes about the need to maintain public order in an area under the control of military government:

 

"The expression 'restoration and maintenance of public order' - 'la vie publique' is. it would seem, a paraphrase of the words 'normalization and rule of law.' Rule of Law, in its turn, is based on the defined norms of a given legal system.

            "And later, at p. 276 he describes the legal system set up by Proclamation No. 2 as implementing this objective. These observations match the views of Oppenheim-Lauterpacht, paras. 169 and 172, International Law, (Seventh Edition). It emerges therefrom that the Regional Commander acted within his authority under international law in directing the continuation of the law (de facto) in force in the Region on the eve of its conquest by the Israel Defence Forces (subject to the changes he deems necessary to assure his control over the Region) without needing to delve into the question of the sovereignty in the Region. The proclamation therefore refers to "the law that was in existence in the Region" and this also is a recognition of fact and not as giving retroactive validity to this law according to international law. In so doing the Commander merely preserved the legal system to which the residents of the Region had been accustomed and facilitated his administration of the Region without undue turmoil (see G. von Glahn, The Occupation of Enemy Territory, under the "Preservation of Laws" p. 94 ff)." [p. 230]

 

            (c) As a result of the war in which the previous occupier of the area was defeated and fled, the power of rule and all the authority invested therein was transferred to the Military Force which has since then effectively controlled the area and prevented the continued activity of the return of the previous ruling authority. The authority or the Military Governor is, as we know, temporary in the sense that its continuing force lasts only for as long as effective control exists over the territory and as long as the Military Government established in the area is maintained. But once it has assumed power, and as long as it remains in existence, and public international law sets no restrictions on its duration, the Military Government replaces the Central Government and its agencies that ruled the territory and sees itself as the sole authority in delineating the rights and obligations of the central government according to the law existing in the Region (Abu Awad v. The Regional Commander of Judea and Samaria [4] at 316. But this is subject to the changes arising from the establishment of Military Government and the restrictions deriving from the provisions of the Laws of War. In other words, any restriction expressed in the Laws of War may derogate from the full operation of the governmental and legislative powers possessed by the previous Ruler (see M. Shamgar - Legal Concepts and Problems of the Israeli Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem, 1982) 13.

           

            The Military Commander heads the Military Government and its authorities which derive their powers as a point of law from their effective control of the area, and from public international law, and in greater detail from the Laws of War (see Dvikat [1] at p. 13) which dictate the scope of permitted action. Furthermore, the power of the Military Commander is not limited to the implementation of existing law but is also competent to translate his authority and directives into terms of Security Enactments (as defined in the Interpretation (Judea and Samaria) Order (No. 130) 1967) largely in the form of Proclamations, Orders and Notices. However, regarding its aims and degree of intervention in existing law, the authority of the Military Commander is limited by the rules of the Laws of War.

           

11. (a) Concurrently with examining the legality of Government activity according to the Laws of War:

 

"We must also enquire whether an Order was lawfully issued in accordance with Israeli domestic law since ...there exists the authority to examine on a personal basis the office holders in the Military Government who are members of the State executive arm as 'persons who occupy public office under law' and are therefore subject to supervision by this Court under section 7(b) (2) of the Courts Law 1957" (ibid.). (Emphasis mine - M.S.) [p. 231]

 

            This second test means that the Court reviews the legality and validity of the action in accordance with the principles of Israeli Administrative Law, to ensure that the holder of office, carrying out functions of the Military Government, acts lawfully and according to the norms binding on Israeli Public Servants (Samara v. The Regional Commander of Judea and Samaria [5] at 4). More particularly, all this does not signify that Israeli Administrative Law applies to the Region and its inhabitants or that an act performed in the Administered Territory will be examined solely according to Israeli law. The above dictum means that actions of the Military Government and its authorities, as instruments of the Israeli Executive arm, will be tested regarding their legality and validity by additional criteria. Although the rules of Israeli law are not binding on the Area, the Israeli office holder in the area is duty bound to act in accordance with additional standards called for by reason of his being an Israeli agency, wherever he may be. Thus he bears the further and cumulative duty so to conduct himself that the norms of Israeli Administrative Law do not release him from the duty to abide by the Laws of War. He cannot rely on those norms to avoid a duty or prohibition applicable to him under the customary Laws of War. Conversely, in the view of this Court, an office holder does not generally fulfil his duty by merely abiding by what the rules of international law require of him. Since more is demanded of him as an Israeli agent in the area of Military Government, he must also act in accordance with principles that constitute fair and orderly administration. Thus, for instance, the Laws of War do not reveal any firmly embodied rule about the right to be heard, but an Israeli authority will not have discharged its duty when its acts are judicially reviewed by this Court for not respecting that right in those cases where it arises under the norms of our own Administrative Law. All this is obviously subject to specific legislation prescribing special regulations in any particular matter. It was to this that the following remarks were directed that describe the Israeli two-level conception.

           

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

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

            (2) the supplementation of the above-mentioned rules and provisions by the basic principles of natural justice as derived from the system of law existing [p. 232] in Israel, reflecting similar principles developed in Military Government, supra at 48-49)."

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

 

            Incidentally, para. 2 cited above is not to be understood as meaning that the other countries mentioned have adopted a similar guideline in military government territories controlled by them. The principles mentioned there are rules of natural justice as adopted in our legal domestic system.

 

Implementation of the norms of administrative law, in order to examine the acts of the Israeli Government authorities, is not an issue in this case, where fiscal Security Enactments are almost exact copies of the legal rules prevailing in Israel. Therefore it is possible to review and determine what the principal guideline is for the applicable substantive law, that will be a guidepost in our examination.

           

            (b) To complete the picture I may add that our examination of the subject will ipso facto entail consideration of the substantive provisions of the applicable laws. If the Military Commander, seeking to make use of certain powers granted him by the local law, acts ultra vires regarding our case law, and with no reference to legislative powers of the wish to implement them, flouts the local law through error or arbitrariness, or the application of invalid criteria, (Dahoud v. Minister of Defence [6]) his act may be declared null and void regarding the substantive provisions of the local law only. The same applies to Security Enactments. Action of a Military Government agency beyond the powers vested in it by the Regional Military Commander - for example, in the matter of State Property (Judea and Samaria) Order (No. 59) 1967, or in the matter of Security Provisions [Consolidated Version] (Judea and Samaria) Order (No. 378) 1970, or in the application of invalid criteria (see para. 11 (a) above) - this can constitute a cause for the intervention of this Court, notwithstanding the fact that what is involved is not an act contravening the Laws of War but one contravening the rules of the local law in force under Proclamation No. 2, namely the law in existence on the eve of the establishment of government by the Israeli Defence Forces or the enactments of the Israeli Defence Forces (Tabgar v. The Regional Commander of Judea and Samaria [7] at 149.

           

            12. What then is the criterion by which the enactments of the Military Government are to be tested? As in the past, learned Counsel for the Respondents did not dispute the competence of this Court to review the actions of the Military Government, (see for instance, Almakdassa v. Minister of Defence [8] at 580 [p. 233] and Hilo v. State of Israel [9] at 176), the acts of an Army operating in an area which fell under its effective control as a result of war, as described above. In this case it is immaterial whether we are referring to the regular army forces who are in control of the area as a result of battle or whether we are referring to a special organization created to govern and administer the area. Units of the Military Government derive their powers from customary laws of war, (Hilo at 176) (M. Shamgar, The Law in the Territories Administered by Israel in Public Administration, supra at 42), parts of which have already been integrated into international Conventions, or found expression in other parts of the said Conventions which include only convention law. Other parts are still incorporated into simple customary law, reflected in the written judgments of national or international tribunals, state practice or professional legal literature.

           

            On the other hand, a court does not review these activities according to conventional international law, as such, which does not constitute a norm applied by Israeli Courts unless embodied in enacted legislation. (Y. Dinstein, International Law and the State (Schocken 1971) p. 143, 148). When this Court addresses itself to the question as to which law it must apply on a plea that some act or omission is in conflict with the rules of public international law, we must distinguish between the rules of customary international law, including the general legal principles embodied in international law, and the rules of conventional international law. As it was decided in Eichmann v. the Legal A-G [10] and according to the law in force in Israel, which is similar in this respect to English law (see Chung Chi Cheung v. The King [18] at 168 (1939) and the observations of Lord MacMillan in Compania Naviera Vascongoda v. S.S. Cristina et al. [19] at 497 (1938); of Shamgar Legal Concepts and Problems of the Israeli Military Government, supra at 47), the acceptance of norms drawn from international law and their relation to national law, is decided according to a number of leading principles:

"(1) A rule of law has undergone reception and becomes an integral part of the system of local law only after it has obtained general international concensus....;

            (2) That will only occur when no conflict exists between locally enacted legal provision and the rule of international law, but where such conflict does exist, the Court must give preference to and enforce the provisions of the local legislator...;

            (3) However...when enacted law is open to varying interpretations and its content does not necessitate any other interpretation, it is to be interpreted in accordance with international law" (ibid., pp. 2040-41) (Eichmann v. A-G, (1962). [p. 234]

 

            Professor Dinstein sharpens the matter by stating (op. cit. at 146) that the rules of customary international law automatically become an integral part of the Israeli law, but where obvious conflict arises between those rules and Israeli enacted law, the enacted law prevails. That is not the case regarding conventional law (Ayub [2] Kawasma v. Minister of Defence [11] p. 627). Like the English practice (Cf. A.-G. for Canada v. A.-G. for Ontario et al. (1937) [20] and see an example applicable to the present English Law (The Geneva Conventions Act, 1957), - and differing from the American practice under its Constitution - the rules of conventional international law are not adopted automatically and do not become part of the law as applicable in Israel, so long as they have not been adopted or incorporated by way of statutory enactment or subsidiary legislation deriving its force praeter legem (Cf. sec. 10 of the Military Justice Law 1955). In this connection Berenson J. ruled in this Court (The Custodian of Absentee Property v. Samara [12] at 1829):

           

"The Rhodes agreement is a treaty between the State of Israel and another State. Whatever the force and validity of such a treaty in point of international law, it is not a law to which our Courts will have to refer or recognize. The rights it grants and the obligations it imposes are the rights and obligations of the States who signed the treaty and their implementation lies in their hands alone through the special ways of effectuating international agreements. Such an agreement does not fall at all under the jurisdiction of state courts except in so far as they, or the rights and duties deriving from them, have become integrated into state legislation and received the status of binding law. In this instance, the Court is not in truth bound by the agreement as such but by the Law that set its seal upon it and breathed life into it under our domestic legal system. It also follows that where the Law and the agreement are not consistent, although it is apparent that the Law was intended to implement and embody the agreement, the Court will give preference to the Law, which alone is binding upon it. Moreover, even when an inter-state or international agreement stipulates that certain rights are to be vested in certain individuals, the obligation contained in the agreement is in the nature of an inter-state obligation only. The persons affected do not acquire any substantial rights on the basis of the agreement and cannot effectuate their right in court as beneficiaries of the agreement or otherwise."

 

            To be precise, one must also distinguish between a question arising in a territory where the law of the State of Israel is in effect, and a matter arising in the Administered Territories. The legal principles [p. 235] applied by this Court, in cases of the kind mentioned above, are the principles of customary international law, and by virtue of these the Court is also bound by the applicable local law under Article 43 of the Hague Regulations, which was in essence adopted by sec. 2 of Proclamation No. 2. That is to say, the Court will turn to local law and the Security Enactments made by the Regional Commander under the Laws of War. As has been said (M. Shamgar, Legal Concepts, supra pp. 47-8):

           

"Within the framework of municipal law, the rules of customary international law are regarded as incorporated therein but only in so far as they are not inconsistent with rules enacted by statute or finally declared by national courts or tribunals. In cases of conflict of law in military government regions, the order of precedence is different: such regions are governed according to the norms of international law which provide, inter alia, that the local law there in force continues as a rule to be valid; alteration of the existing law, its suspension or repeal, or the promulgation of new laws are examined according to the restrictions prescribed in Article 43 of the Hague Regulations and Article 64 of the Fourth Convention and is permitted when the exigencies of war, the maintenance of public order and the safety or the welfare of the population so require. Legislative changes have been examined by the Israeli courts according to these criteria."

 

            As has already been mentioned, cases may occur where a submission is made to this Court based substantially on local law alone (see (13)), but here as well the norms of recognized international law assist in consolidating the main guideline: inquiry into the acts of the executive agency, in the light of local law consequent upon its assuming the authority under sec. 3 of Proclamation No. 2, includes not only the examination and interpretation of the applicable law in the territory, whether it be local law or security enactments; but when deciding on a petition, the Court also takes into consideration - at least by implication - the question of how the exercise of authority is reflected in the rules of recognized international law as expressed, for instance, in Article 43 of the Hague Regulations (cf. Regional Electric Corp. v. Minister of Defence [14]). [p. 236]

 

13. The differences between customary and conventional international law, on which I dwelt above, have faced this Court in the past, in petitions by residents of the Administered Territories. In Ayub [2] at 119-1, Witkon J. said in this connection:

 

"The first question to which we must pay attention is whether the Petitioners may, as protected persons, themselves claim rights under these Conventions - and this, in a "municipal" (internal) court of the Occupying Power - or whether only those states who are parties to the Conventions are competent to claim the protected rights - and that, obviously, at the international level. As is known, the answer depends on another question: Has the same provision in the international Convention, which it is sought to enforce, become part of the municipal (internal) law of the state whose court is asked to deal with the matter, or does the provision remain rather in the nature of an agreement between the states, as such, without becoming part of the internal municipal law? In the first event, one is speaking of 'customary' international law recognized by the municipal law itself as long as there is no conflicting provision in the body of the municipal law. In the second event, one is speaking of 'conventional' international law which only binds the states involved.

 

"Nevertheless, before being precluded from considering the actions of the army from the point of the provisions of the Hague and Geneva Conventions, I would have to be persuaded that these Conventions are not to be treated as customary international law but only as conventional international law. Indeed, at one point I thought so on the basis of three judgments of this Court - Steinberg v. A-G, Almakdassa [8] at 580 and Abu eI-Sin v. Minister of Defence. The first of these precedents concerned the provisions of international law in general, but the other two dealt expressly with the Hague and Geneva Conventions. In the view of the justices who gave judgment, these two Conventions are conventional international law, and accordingly cannot be relied upon in a municipal court of Israel.

 

"In the meantime Professor Y. Dinstein published his instructive Note 'The Judgement in the Matter of the Rafiah Gap' in 3 Iyune Mishpat 934, in which he explained that there was a difference between the two Conventions. Whilst the Geneva Convention remains part of conventional international law (and therefore did not become part of municipal law), it is otherwise with the provisions of the Hague Convention. The latter gives expression to the law which is accepted [p. 237] in all civilized countries and is thus regarded as customary international law. In view of this Note, I reconsidered the matter and I am not satisfied that the Hague Convention is recognized as customary law under which a municipal court may be asked to act. The same conclusion follows from Schwarzenberger's International Law, vol. 2 (1968) pp. 164 ff.; see also Von Glahn, Occupation of Enemy Territory (1957) p. 11. Schwarzenberger writes:

 

'As in relation to other codifications of the laws and custom of land warfare, so in relation to the law of belligerent occupation, the question arises whether these treaty provisions are merely declaratory of international customary law or constitute a development of such rules and, thus, are binding only on parties to these conventions.' "

 

            Acting President Landau (as he then was) went on to add in Ayub [2] at 128-129:

           

"The affidavits in reply submit that the Respondents abide by the humanitarian provisions of the Geneva Convention...I have no intention of going deeply into this aspect, since that convention entirely (and all the more so this specific provision in it) is of the nature of conventional international law which, following the English rule that prevails with us, does not bind this Court, its enforcement being a matter for the states which are parties to the Convention (see Custodian of Absentee Property [12] and Eichmann (10)).

 

The Hague Regulations are very widely held to be customary international law and this Court will so regard them and implement them so long as they are not inconsistent with local statutory law (Hilo [9] at 177 and Eichmann [10] at 2055) .

 

            In Dvikat [1] at 16 as well, for example, the Court pointed out that the same criterion serves to give judgment in the concrete case before it in the said Petition (see also Hilo [9] at 177).

           

            In sum, the Court will inquire into the legality of an act according to customary international law; and in the matter before us this criterion directs us, to the provisions of the laws of war and the local law. [p. 238]

           

            There has been no claim that the orders of the Military Commander exceeded the limits he set himself when establishing the legal and administrative system of Military Government, as provided in Proclamation No. 2, or in later legislation. On the other hand, we are presented with the argument that such enactments of the Military Commander are inconsistent with and have modified the local law. As to this, we saw above that part of the Excise Duty Order is properly based on laws and directives (depending on the Region) that were in force when the military government was established.

           

            There remains the question of whether the introduction of changes and innovations, that is, the introduction of the Additional Excise Duty, is in line with the rules of customary international law according to which a military commander must act in military government territory. As will be seen later, the relevant provisions are those of the Hague Regulations. In the present case, no question arises directly involving examination of the Geneva Convention which lies within the framework of conventional international law since that Convention contains nothing with regard to taxation. Nevertheless, in order to complete the picture we shall have to return later to Article 64 thereof, dealing as it does with the protection of civilian persons in times of war since 1949, when we consider the meaning to be attached to the Petitioners' argument that it is forbidden to introduce penal provisions in an order imposing additional excise duty.

 

            In view of the foregoing, we must, at the next stage, turn our attention to the relevant provisions of customary international law; but before so doing, it is proper to preface a number of observations on the nature and limits of this theme.

14. (a) The term customary international law should rightly be understood - for the purpose of determining its contents and limits - in the manner described in article 38 (1) of the Statute of the International Court of Justice:

           

            "(b) international custom, as evidence of a general practice accepted as law."

           

            according to the translation by Prof. Y. Dinstein on p. 45 of his book.

           

            From the nature of the matter, it refers to accepted behaviour which has merited the status of binding law (Dinstein, op. cit., p. 52): General practice, which means a fixed mode of action, general and persisting - to distinguish it from action that is occasional and temporary - which has been accepted by the vast majority of those who function in the said area of law. In other words, the fact of the existence of international custom derives from the consciousness of all those who apply and further the international law [p. 239] in accordance with which they are obliged to act in the manner prescribed by accepted custom, or to refrain from any acts that accepted custom prohibits. I have referred to the consciousness of those involved and not only of their actual practice, since a custom is binding as written in Article 38 when it is accepted as law by those who apply it. As Schwarzenberger has written (op. cit., vol. 1 (1957) p. 27) in this connection:

"In the case of rules of international customary law, the collective body of subjects of international law, whose practice accepted by them as law is requisite for the creation of any particular rule, forms a... principal agency... In any individual instance, room for disagreement on the exact composition of each of the ... principal agencies exists. This does not, however, affect the general conclusion that, in relation to each particular rule, only the collective body of subjects of international law which is required for the creation of such a rule constitutes its relevant law-determining agency."

 

and later on (at p. 28):

 

            "Only the ensemble of each of these agencies can fulfil this function."

           

            A custom is not necessarily formed by virtue of a uniformly held viewpoint by a complex of different national and international tribunals, since it is possible that not one of them has been invited to deal with the question. However, anyone wishing to know whether a custom has crystallised may make inferences from the acts of different states in the international field and their views on any matter. That is to say, 'a practice which is accepted as law' may indeed be deduced only from the acts of those engaged in the practice, although there is no denying that the decisions of international tribunals carry relatively far greater weight because of their more varied composition and their relative independence from any single defined national interest that may actuate them. It is, however, unnecessary to say that what is desirable is not always feasible and that a complex of different and even conflicting interests does not necessarily lead to the desirable shared balanced view but rather to a kind of tug of war between those who hold differing and conflicting views as Schwarzenberger has shown [p. 240] in another connection in International Law, (Law of Armed Conflict, vol. 2, London, 1968) 4, from which it is difficult to extract an accepted rule.

           

            Customary international law is derived to a large extent, of course, also from the writings of 'the most qualified publicists of the various nations.' Since the process of codification of customary law in the form of Conventions is a slow one, because the case law is only concerned with problems that come before the tribunals for judicial decision, and also because state practice is not always open and declared and certainly not uniform, legal literature has become the most varied and prolific source. But here trouble arises, as Schwarzenberger has said, International Law vol. I, supra at 36:

           

"It is about as difficult to find out who are the most highly qualified publicists in a field of international law as to say with any claim of objectivity what is a peace-loving nation."

 

            In the English case of West Rand General Gold Mining Co. Ltd. v. The King, Lord Alverstone C. J. said (at 407):

           

"Any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted that it can hardly be supposed that any civilised State would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations."

 

Thus far as to the sources from which customs and the knowledge thereof are derived. It should be added that examination of these sources can also lead to the conclusion that a custom once accepted [p. 241] and binding as law has been eroded, in the course of time and because of changes in international conditions, lost its force or binding character, either in whole or in part.

 

            (b) Anyone wishing to investigate the existence of a custom, can run into a series of facts, lacking a generally agreed upon and unified viewpoint, which indicate the existence of a custom accepted as expressing a law, although there exist indications that the custom is not sufficiently established as to be binding, or that it has become eroded in the past. The burden of proving its existence and status, as described in its fundamentals in Article 38 of the Statute of the International Court of Justice, is borne by the party propounding its existence:

           

"The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the Party." (The Asylum Case (1950) [26], at 276).

 

            Incidentally, in this last case, which involved a dispute between Colombia and Peru over political asylum, the court, in referring to the features of binding custom, adopted the phrase 'constant and uniform usage', as elements essential for the creation of a custom already emphasized above.

           

            Although a generally accepted practice is involved, as mentioned above, it is not always possible to prove that it is recognised by every one without exception, especially when the viewpoints of the different constituents of the international community are taken into account. However, the views of an ordinary majority of states are not sufficient; the custom must have been accepted by an overwhelming majority at least (see H. Kelsen, Principles of International Law: the Overwhelming Majority (New York, 2nd ed., by R.W. Tucker, 1967) 450.

 

            (c) What is the import of an absence of the requisite international consensus? H. Kelsen says in the first edition of his book Principles of International Law (New York 1952) 305:

           

"If there is no norm of conventional or customary international law imposing upon the state...the obligation to behave in a certain way, the subject is under international law legally free to behave as it pleases; and by a decision to this effect existing international law is applied to the case." (The emphasis is mine - M. S.) [p. 242]

 

            Meaning that, in the absence of an arrangement, customary or conventional, a state is free to act according to its own understanding of principles, and by so doing it applies existing international law, since any conclusion regarding the absence of a binding custom is part of international law.

           

            I may add that I accept the view of Professor Dinstein (op. cit. p. 58) that along with customary law one must also inquire into the application of principles of general law. For the purpose of the present case (Added Excise Tax), there is no theoretical or practical significance to such an inquiry and I shall therefore not dwell on this point.

 

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

 

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

           

            We can now proceed on to the next stage of examining the treaties containing a codification of customary law or an attempt at codification, such as the Instructions of Prof. F. Lieber, the Brussels Declarations, the Oxford Proposal and the Hague Regulations of 1899 and 1907. Thereafter, we shall refer to the writings of the international law specialists and concurrently to the practice of different states and the available case law. This order of treatment does not necessarily indicate the relative importance of these sources; the arrangement has been largely influenced by the frequency with which the present subject has been addressed in these sources.

           

16. (a) The American Civil War provided the stimulus for the first attempt at consolidation of the modern laws of warfare into an inclusive system of rules. Prof. Francis Lieber of Columbia College, N. Y., [p. 243] drafted a series of guide-lines (hereinafter: Lieber's Instructions) which were reviewed by a staff of officers and later published on April 24, 1863 by President Lincoln under the title of Instructions for the Government of the Armies of the United States in the Field - General Orders No. 100 Adjutant General's Government Printing Office, Washington. See F. Lieber, Contributions to Political Science, Miscellaneous Writings (vol. 2, 1881) 245.

 

            These Instructions were clearly binding only upon the U. S. armed forces - initially during the Civil War when they were published - but their effect on the codification of the laws of war and on the adoption of similar provisions in other countries was considerable. They served as a platform for the preparation of the Project of an International Declaration Concerning the Laws and Customs of War presented to the Brussels Conference on August 27, 1874. For the French text, see. G. F. Martens, Nouveau Recuil General de Traites et Autres Actes Relatif aux Rapports de D'oit International; (Gottingen, 2e serie, Tom. 4, 1876-1908) 219: and for the English text, see J. B. Scott, The Proceedings of the Hague Peace Conference 1899 (New York, 1920).

 

            The Lieber Instructions also guided those who drafted the Hague Conventions of 1899 and 1907. We shall return later to their relevant provisions as well as to the express references thereto made by Alexander Nelidov, president of the Hague Conference of 1907 and Russian ambassador in Paris, in his opening address to the Conferencion June 15, 1907 as reported in the minutes thereof. (Deuxieme Conference Internationale de la Paix. - Actes et Documents, La Haye, Impremerie Nationale 1907, vol. 1, 49). For the influence exerted by the Lieber Instructions, see also T. E. Holland, The Laws of War on Land Oxford, 1908) 18; H. Kirchhoff, Die Kriegerische Bezetzung Feindlicher Landesteile (Hamburg, 1917) 14; G.B. Davis Doctor Francis Lieber's Instructions 1 Am. J. Int'l L. (1907) 22; D. A. Graber, The Development of the Law of Belligerent Occupation. 1863-1914 (New York, 1949) 14.

           

            In the matter which concerns us here, clause 37 of the Lieber Instructions states:

           

"The United States acknowledge and protect, in hostile countries occupied by them religion and morality; strictly private property; the persons of the inhabitants, [p. 244] especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.

"This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, lands, boats and ships, and churches, for temporary and military uses." (The italics are mine - M.S.)

           

            According to D. A. Graber (supra at 112) clause 10 of F. Lieber's Instructions also states:

           

"... certain other phases of public law and administration would nearly always be interfered with by the occupant. Examples are police and tax administration". (Italics mine - M. S.)

 

            According to E. Loening, (L'Administration du Gouvernment General d'Alsace. R. D. I. et de L. Comp.. vol. 4. 1872) 650, taxation law figures among the laws having political importance which military government may from its initiation, suspend in the area under its control.

           

            The viewpoint expressed in the Lieber Instructions is that the military regime has the authority to collect taxes from residents of the areas, including property taxes as well as imposed compulsory loans. According to the wording of clause 37 there are no accompanying restrictions or conditions of any kind, through existing taxes or otherwise. Furthermore, the clause employs a broad manner of expression - "tax the people or their property" - that embraces the imposition of new taxes as well as the collection of existing ones. It is up to this point that we shall deal with Lieber's Instructions.

 

            (b) To see the matter in its proper perspective, I should add that there was a radical difference in the basic approaches and emphases during the time of Lieber as compared to the same features at a later date. At that time, attention was directed to expressing in detail the powers of the occupying power and his authority. But later (see e.g., Bluntschli, Das Moderne Kriegsrecht der Civilisierten Staaten, 1866) 8, the restrictions on these powers and authority were emphasised. [p. 245] This emerged from Bluntschli's thesis that existing law is not to be amended unless it is unavoidable, a rule that was adopted afterwards in Article 43 of the Hague Regulations. As regards the matter before us, Bluntschli wrote that if the military government wishes to exercise the power of taxation, its acts will be valid only if consistent with the necessities of war or the requirements of the area and its inhabitants. If the military government levies taxes, there simultaneously arises an obligation on its part to cover the administrative expenses of the area (Bluntschli, supra at 26). This duty was later expressly included in the Hague Convention, which we shall discuss later. (See also Heffter, Das Europaeische Voelkerrecht der Gegenwart (5th ed., 1867) p. 337). A similar but more moderate formulation of the restrictions is contained in the final proposal to the Brussels Conference, which was embodied in Article 43 of the Hague Convention (N. R. G. de T. 2d series, IV, 6-7). Incidentally, the Italian proposal at the said Conference sought to confine the power of amending laws only to those laws that were political, administrative, or fiscal in nature. (ibid. at 77).

           

            According to D. A. Graber (supra at 152, 160, 287, 290) the pendulum of changes of emphasis mentioned above came to a rest on the eve of the First World War when the expected compromise, so to speak, was reached, to the effect that the existing arrangement should be honoured and no departure therefrom should be made except in case of need. The approach adopted after the First World War will be dealt with at a later stage, after considering the Hague Conventions and the rest of their announcements.

           

17. (a) The Brussels Proposal discussed at the Conference held in Brussels in August 1874 did not give rise to the formulation of generally accepted customary rules. The final protocol signed in Brussels on August 27, 1874 by fifteen states (but not ratified by them) explained that the project was what it said it was and remained in the area of a platform that was open for study and discussion. It said:

 

"The modifications which have been introduced into the Project, the comments, the reservations, and separate opinions which the Delegates have thought proper to insert in the Protocols, in accordance with instructions, and the particular views of their respective Governments, or their own private opinions, constitute the ensemble of their work. It is of the opinion that it may be submitted to the respective Governments which it represents, as a conscientious inquiry of a nature to serve as a basis for an ulterior exchange of ideas, and for the development of the provisions of the Convention of Geneva of 1864 and of the Declaration of St. Petersburg of 1868. [p. 246] It will be their task to ascertain what portion of this work may become the object of an agreement, and what portion requires still further examination."

 

The subject of the present Petition is dealt within Articles 5 and 41 of the Proposal, and is expressed in English as follows:

 

            "Art. 5. The army of occupation shall only collect the taxes, dues, duties, and tolls imposed for the benefit of the State, or their equivalent, if it is impossible to collect them, and, as far as possible, in accordance with the existing forms and practice. It shall devote them to defraying the expenses of the administration of the country to the same extent as the legitimate Government was so obligated.

            "Art. 41. The enemy in levying contributions, whether as an equivalent for taxes (see Article 5) or for payments that should be made in kind, or as fines, shall proceed, as far as possible, only in accordance with the rules for incidence and assessment in force in the territory occupied.

            "The civil authorities of the legitimate Government shall lend it their assistance if they have remained at their posts.

            "Contributions shall be imposed only on the order and on the responsibility of the commander-in-chief or the superior civil authority established by the enemy in the occupied territory.

            "For every contribution, a receipt shall be given to the person furnishing it."

 

It follows from the above quotations that those who submitted the Proposal sought to limit the collection of taxes, payments of debts, property taxes, dues and the like to those that were meant to serve the State. That is to say, a request was made to classify a tax according to its purpose. But since the authors of the Proposal sought to protect the property of the authorities, and private property, not of the enemy state as such, they also meant, for example, to prevent the occupying power from collecting [p. 247] what was due to municipalities, other authorities, or individuals. For this purpose, the occupying power replaced only the occupied state, and not the authorities that were non-state, nor its citizens nor its inhabitants, who acted as individuals. The first part of Article 5, delineating the permitted limits of taxation is substantially parallel to and complements the last part of Article 5, dealing with the ways in which the collected taxes are to be used.

 

            In sum, permitted levies are linked as has been indicated, to payments imposed to serve the requirements of the state. Only these may be collected, but if collection of a tax cannot be effected, a parallel and alternative tax may be collected in its place.

 

            Since impossibility to correct an original tax is involved, it is not to be assumed that the alternative tax must in essence be identical with the original one for that would lead to a contradiction: the very need for the alternative tax and the power to introduce and collect it arise only when it is impossible to collect the original tax. It seems that the impossibility of collecting the tax, a concept not included or indicated in the draft proposal, can therefore be coupled with the inability to impose the dominant criterion delineating the nature of the tax or manner of its assessment (for instance, property tax that cannot be collected because land registration records, or other necessary records are not to be found in the occupied area, being held by the former administration, not in the occupied area) and not necessarily because of the impossibility of applying existing procedures (for instance, absence of the possibility of requiring tax returns to be made). A separate sentence is devoted only to the impossibility of applying methods of collection - i.e. 'as far as possible in accordance with the existing forms and practice' and this therefore strengthens the view that the first part of the article is to be construed only by reference to the lack of possibility to proceed according to the substantive basis that serves as a criterion for imposing the tax. That means, that what is involved is not only the same tax under another name but a tax having other criteria. The impossible, (to use the language of the article) becomes the possible only if another yardstick is prescribed regarding the imposition of the tax with a similar criterion regarding the collection of the original tax which does not imply, among other things, the accompanying impossibility of collecting the original tax. To sum up this point - the equivalency, according to the text of the article, does not have to relate to the nature of the tax; it may relate to some other dominant feature from which stems the impossibility of collecting the tax.

           

            As I have already said, there is no occasion for concluding that imposition of an equivalent tax must of necessity relate to the impossibility of acting in accordance with existing procedures, because for this matter there is a separate passage in Article 5 according to which there is no obligation to do so, if the former practice is impractical. Further support for the view supporting the need to understand the term 'equivalent' as being between the essence and character of the tax [p. 248] and the practice of its implementation can be derived from Article 41 which expressly refers to the assessment and collection of the new alternative tax. If the words 'as far as possible, in accordance with existing forms and practice' which figure in Article 5, had also applied to the new alternative tax (equivalent) there would have been no necessity to add anything of the same sense which is expressed separately in Article 41, and relates frequently to the assessment of the new tax and determines that even this shall be as far as possible within the existing framework.

           

            This means that, according to the proposed text, the introduction of taxes, customs, duties or other dues identical in purpose in their general nature to those already existing would, in defined circumstances, be permitted, when it was not possible to collect the tax in its original shape and form. The forms and practices regarding the collection of taxes, customs, duties or other dues, as the case may be, are those that exist, but if it is not possible to follow them, other forms and practices are permitted as far as allowed in the terms of the text.

 

            The point is that there is no absolute and rigorous prohibition at all on new taxation. All that is prescribed is the criterion of the ability of implementing the existing laws. It is here that mention should be made of the fact that the question of introducing a new tax was not overlooked by the experts who discussed the project. At one stage they even proposed the addition of an express provision recognizing the right to impose a new tax, since the cost of the war was, at any rate, making that necessary. (N. R. G. de T. 2nd series, IV, (1879-80) 80). The proposal was not accepted but this was because of reservations very similar to those voiced at the Hague Convention, to which we shall return. The reservations are relevant in this case. Thus Lansberger argued, that while it can be presumed that an occupying power would levy new taxes, he should not be given the authority to do so in advance. G. Moynier maintained that if there was a need for additional revenue, it could be raised by the imposition of levies (G. Robin Jacquemyns in R.D.I. et de L. Couv., vol. 411, (1875) 477). The provision for imposing levies instead of taxes that are not collectable was included in Article 41 for this reason.

 

            The absence of any obligation, absolute and without exception, by virtue of which one must act in accordance with the forms and practices in force on the eve of the occupation takes us back to the phrase 'as far as possible', which expresses implied permission to deviate from the existing situation. The phrase, to which we shall have to return in regard to the Hague Convention, does not subject the possible and the implementable to reasons of military and security exigencies only. That is to say, it is not only the limitations deriving from conditions of war and belligerency that can be legitimate grounds for deviating from the customary and from what is already firmly established. As has been indicated, this text also served as the opening for the recognition of the innate difficulties in the ability of implementation, pure and simple, such as obstacles that resulted from the non-co-operation on the part of former officials. It is obviously impossible to foresee and pinpoint all the circumstances that may be used as grounds for deviation from existing conditions, when the collection of tax, valid and in force before the occupation, has become impossible to implement. [p. 249]

 

            b) The absence of an absolute prohibition obligates reiteration of the guideline referred to in para. 14 (c) above: The prohibition has no force in any particular area of military government activity unless it is derived from a customary rule, and no customary rule can be considered as a firmly recognized principle unless it has received expression in one of the sources we have mentioned.

 

            Sometimes general guidance may be given regarding the form of a solution to be utilized for the case of a lacuna in the laws of war. Thus, the eighth paragraph of the preamble to the Second Hague Convention of 1899 and the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 refers us to

 

"...the principles of the law of nations derived from the usages established among civilized peoples, (from) the laws of humanity and (from) the dictates of public conscience."

 

            Seemingly the laws of humanity and the dictates of conscience cannot serve as a certain guide for those seeking an answer to the question of introducing new taxation, but in so far as something may be learned from the trends and viewpoints common at the particular time among civilized peoples, the Lieber Instructions and the Brussels Project serve at least as aids for understanding the developments that found expression in the subsequent Hague Conventions, in which expression for the accepted common denominator was requested.

           

18. As mentioned above, the Brussels Proposals remained as the basis for theoretical discussion.

           

            To complete the picture, it should be mentioned that in 1880 the Oxford Institute of International Law published a manual to the Laws of Land Warfare, the work of Gustav Moynier (see Annuaire de l'Institut de Droit International, vol. V (1881-82)186, and J. B. Scott, Resolutions of the Institute of International Law, New York (1916) p. 26).

           

            The manual was designed as well to assist in the gradual codification of the area of international law with which we are concerned. The introduction states:

           

"The Institute.... does not propose an international treaty, which might perhaps be premature or at least very difficult to obtain; but, being bound by its by-laws to work, among other things, for the observation of the laws of war, it believes it is fulfilling a duty in offering to the governments a Manual suitable as the basis for national legislation in each State, and in accord with both the progress of juridical science and the needs of civilized armies. Rash and extreme rules will not, furthermore, [p. 250] be found therein. The Institute has not sought innovations in drawing up the Manual; it has contented itself with stating clearly and codifying the accepted ideas of our age so far as this has appeared allowable and practicable."

 

            The question of taxation is dealt with directly in Article 57 of the Manual, and indirectly in Article 58, as follows:

           

"Art. 57. The occupant may collect, in the way of dues and taxes, only those already established for the benefit of the State. He employs them to defray the expenses of administration of the country, to the extent in which the legitimate government was bound.

            "Art. 58. The occupant cannot collect extraordinary contributions of money, save as an equivalent for fines, or imposts not paid, or for payments not made in kind. Contributions in money can be imposed only on the order and responsibility of the general in chief, or of the superior civil authority established in the occupied territory, as far as possible, in accordance with the rules of assessment and incidence of the taxes in force."

 

            Again there is reference to taxation for the benefit of the state as distinct, for example, from taxes and dues intended to provide funds to a local authority or some other special agency. The point is, however, that the proposed text restricts the military authority for the first time to "only those taxes already established."

           

            The Manual did not achieve official standing: some of its ideas are echoed in the Hague Regulations but, as we shall see, in a different form.

           

19. (a) In May 1899, on the initiative of the Russian Czar Nicholas II, there was convened in the Hague, the first Peace Conference attended by the representatives of twenty-six countries. The second Peace Conference met in 1907 with a larger number of participants and continued as the one before in the preparation of Conventions on the Laws of War. (The Conventions were published by the Dutch Foreign Ministry: Conference Internationale de la Paix 1899 and 1907, Ministere des Affaires Etrangeres, La Haye, Imprimeries National, 1899-1907). With regard to the Final Acts, D. Schindler and J. Toman, in (The Laws of Armed Conflict, Geneva, 2nd ed., 1981) 49 - write as follows: [p. 251]

 

"The Final Acts constitute authoritative statements of the results achieved. They were signed by the delegates but not ratified by the participating states. They have no binding force."

 

            Among the Conventions signed at both Conferences are Convention No. II of 1899 with Respect to the Laws and Customs of War on Land, and Convention IV of 1907 Respecting the Laws of War on Land which came into effect regarding the ratifying states on 4 September 1900 and 26 January 1910, respectively.

           

            (b) During the years that passed after the signing of the Conventions the view steadily grew that the Regulation annexed to the Fourth Convention of 1907 represented customary international law in the field of laws of war, binding on everyone. (See Cession of Vessels and Tugs for Navigation on the Danube Arbitration 1 R.I.A.A. p. 99, 104 (1921); cf. E. Fraenkel, Military Occupation and the Rule of Law (Oxford. 1944) 183-189. Regarding the attitude of the German courts in a case of this kind during the occupation of the Rhine region after the First World War. D. Schindler and J. Toman, supra at 57, write:

           

"The provisions of the two Conventions on Land Warfare, like most of the substantive provisions of the Hague Conventions of 1899 and 1907, are considered as embodying rules of customary international law. As such they are also binding on states which are not formally parties to them. In 1946 the Nuremberg International Military Tribunal stated with regard to the Hague Convention on Land Warfare of 1907: 'The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing International Law at the time of their adoption ... but by 1939 these rules ... were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war' (reprinted in AJIL, Vol. 41 (1947) pp. 248-9). The International Military Tribunal for the Far East expressed, in 1948, an identical view." (See, Judgment of the International Military Tribunal [p. 252] for the Trial of German Major War Criminals, (Nuremberg, 1946) Cmd. 6964 p. 65)

 

            The statements of the International Military Tribunal are unequivocal and have served many scholars as guide-lines when dealing with the question of the binding force of the Fourth Hague Convention: (See, for example, L. Oppenheim, International Law (London, 7th ed; by H. Lauterpacht. vol. II, 1952) p. 234 and Prof. G. Schwarzenberger, The Law of Armed Conflict, supra, vol. II, pp. 164-65).

           

            It may be noted that at the same time that the International Military Tribunal wrote its judgment, the Allied Military Government in Germany did not consider itself bound by the rules of the Hague Convention since these did not apply to them according to the then accepted rules of international law in the case of debellatio (see L. Oppenheim, supra, at 602 and the arguments presented there, but as opposed to this see, G. Schwarzenberger, supra at 319, and A. Verdross, Voelterrecht, Vierte Ausgabe (1959) p. 385).

           

            At all events, we have already mentioned the view that regards the appendix to the Fourth Hague Convention of 1907 as expressing customary international law in the field of the laws of war, a view adopted by this court in Ayub [2]. (See also Dinstein, The Judgement in the Matter of the Rafiah Gap. loc. cit.). There was, therefore, no argument before us on this point.)

           

20. The provisions pertinent in this case which have been dealt with extensively by the parties are contained in Articles 48 and 49 of the appendices (the Regulation) to the Second Convention of 1899 and the Fourth Convention of 1907. The textual differences are marginal but for the purpose of accuracy and comparison it is only proper to give both versions, side by side:

 

1899

Art. 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do it, as far as possible, in accordance with the rules in existence and the assessment in force, and will in consequence be bound to defray the expenses of the administration of the occupied territory on the same scale as that by which the legitimate Government was bound.

            Art. 49. If, besides the taxes mentioned in the preceding article, the occupant levies other money taxes in the occupied territory, this can only be for military necessities [p. 253] or the administration of such territory.

           

1907

Art. 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound.

 

            Art. 49. If, in addition to the taxes mentioned in the above article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or the administration of the territory in question.

           

            For the binding customary international law in effect now, we must turn to the Hague Regulations of 1907; but in order to understand the background and to facilitate comparison between the versions, both texts of the articles are quoted, as they appear in both Conventions.

           

            It may be added here that the British Army Manual (Sir H. Lauterpacht, The Law of War on Land being part III of the Manual of Military Law (London, 1958) (hereinafter: The British Manual) reproduces part of an English translation of Article 48 which differs from that of J. B. Scott as quoted below:

           

"...as far as possible, in accordance with the rules of assessment and incidence in force."

 

            In the fifth appendix of the British Manual which contains an excerpt from The Hague Regulations (1907), the above passage, at 208, appears as follows:

           

"as far as possible, in accordance with the legal basis and assessment in force at the time."

 

            It seems that the British Manual version is more correct since the French version of the text is as follows: [ p. 254]

           

"Si l'occupant preleve, dans le territoire occupe, les impots, droits et peages etablis au profit de l'Etat, il le fera autant que possible, d'apres les regles de l'assiette et de la repartition en vigueur..." (The emphasis is mine - M.S.)

 

            It follows from the original text that the term les regles (the rules) accompanies the words assie and repartition, as a descriptive noun common to each of them. The meaning of assiette is base or basis (base or fondement) as defined in the Larousse dictionary. Together in its relationship to tax is the word impot which dominates the French text of Article 48, meaning (the legal) basis of the tax. Hence the translation of the words regles de l'assiette corresponds to provisions or rules in relation to the legal basis of the taxes or dues. Therefore the British Manual translated the French expression regles de l'assiette to the English text with the words: "legal basis."

           

            The term repartition means in French distribution or partage. The reference is to the way of determining who is subject to tax (see Larousse above, the explanation of the term impot de partition). The British term incidence also refers to the answer to the question of who is subject to tax and how much it is. (H.W. Fowler, The Concise Oxford Dictionary of Current English, Oxford, 5th ed. 1964).

           

21. Article 48 -The text accepted in 1899 and that in the Convention of 1907 use the conditional tense, (that is to say... if ...) as opposed to the positive declaratory style that we find in Article 56 of the same regulations, and in other articles, a style more decisive than that demanded by the Oxford manual quoted in para. 18 above. As is acceptable to us in interpretations of statutory law or conventions, the reasons for variations that occur in texts of the same case must be investigated, for the change in text may result in a change of intention, content, and ramifications.

 

            The use of the conditional form of necessity limits the meaning and operation of the article to the given set of circumstances, to the situation created if the occupying power decides to levy existing taxes meant to serve the interests of the state. If it does so, the article provides, it is also bound by defined duties, and more specifically: if it collects taxes as defined it must defray the expenses of the territory and may not fill its own coffers and leave the territory and its problems unattended. The levying of a tax carries with it the duty linked to the tax. On the other hand, as the article is formulated, there is no general and guiding principle applicable to every matter of taxation. The article, according to its structure and content, refers only to what has to be done when existing government taxes are collected [p. 255] and it is thus confined to these given circumstances alone. Likewise, Article 49 also prescribes a duty that the new tax will carry, if the new tax is introduced.

           

            It is indeed apparent that the above-mentioned text, which does not, in a general and positive manner, declare whether the occupying power is allowed to collect existing taxes or levy new ones, was not adopted by chance or in vain, but is a clear and conscious expression of the adoption of part of the achievements in this area of the Belgian representative Auguste Beernaert, in the two peace conferences. At the opening of the debate in 1899, Beernaert posed a general problem centred around the provisions of a chapter of the Convention that dealt with the occupied territories, and which also included Article 48. He expressed the misgivings that the text would present, generally and positively, and in an exhaustive manner, just what actions are permitted to the occupying power, in order to draw up a sort of series of rights, indicating in advance all the legal possibilities open to him. According to Beernaert, that would:

           

"expressly to legalize rights of a victor over the vanquished and thus organize a regime of defeat." (E. Rolin, Report to the Conference from the Second Commission on the Law and Customs of War on Land; Proces - Verbaux, pt. 1, p. 34. Address by A. Beernaert of June 6, 1899).

 

            He saw as unwise a text that accorded rights to an occupying power that would legalize its actions. He proposed that the Convention embody no provisions, that it recognize the existing situation without according vested rights to an occupying power.

           

            In this connection, A. Beernaert and den Beer Portugael (the Dutch representative) proposed deleting from the appendix to the Fourth Geneva Convention, the provision like the one appearing in para. 3 of the Brussels Project, which is also similar to Article 43. They were supported by the Swiss representative (Odier) (See: N. R. G. de T. 2nd Series, vol. III 120, 121; J. B. Scott, The Reports to the Hague Conferences of 1899 and 1907 (Oxford, 1917) 139, 149. These arguments are also mentioned in the Instructions to the American Delegates to the Hague Peace Conferences and their Official Reports (New York, 1916) 49. In order to understand the basic purposes of the drafters of the Regulations it is important to recall the views of E. Robin that Regulations should only emphasize what prohibitions apply to the occupying power and not necessarily what he is permitted to do. (Conference de la Paix, La Hague, 1899 Part III, p. 120). Against this background it is easier to understand why the provision that was included in the Brussels Project was omitted at the Hague, a provision according to which, under certain conditions it was permitted to collect a tax "equivalent" to the existing tax. [p. 256]

           

            The principle of the matter, in the light of A. Beernaert's remarks in Article 48; it was agreed in the second Commission of the Conference that this article should adopt a moderate approach prescribing the significance and ramifications in the event that the occupying power decided to collect the existing taxes as indicated in Article 48; and not introduce a provision that prescribes in a general way, the scope of authority of the occupying power in the field of taxes through a complete presentation of prohibitions and allowances. As E. Robin, the Rapporteur, remarked during presentation of his proposals to the Second Commission to the plenum of the Conference:

           

"It may be observed that the new article adopts a conditional form. This wording was proposed by the reporter with a view to obtaining the support of Mr. Beernaert and other members of the subcommission who had expressed the fears with which every wording seemingly recognizing rights in an occupant as such inspired in them." (J. B. Scott, supra at 150)

 

            Thus, it is clear why a version was chosen from which it is possible to learn only the obligations that fall upon the occupying power regarding the purpose of the collected taxes in the event that he collects the existing government tax (Article 48) or levies new taxes (Article 49). On the other hand, there is no provision, either in the 1899 or 1907 conventions, detailing in any way whatsoever the rights of the Military Government in the field of taxation. At any rate, it is difficult to conclude from Articles 48 and 49 of the Hague Convention appendix that there is a rule of customary international law prohibiting, as it were, imposition of new taxes by the occupying power. There is no such express statement in the Convention, and as may be learned from the discussion that preceded its adoption, there was no intention of including such a provision. Since we are prevented from taking a general position in this particular matter, the basis for a simplistic viewpoint can be discarded under any circumstances that the Convention purports to present a rule inclusive, exhaustive and absolute, which, as it were, might at once resolve the difficulty before us.

            In the 1916 edition of Wheatkon's book, attention is directed to the fact that Article 48 does not, according to the opinion of the author, permit collection of taxes, nor does it prohibit it. Rather, it imposes certain limitations incumbent upon the occupying power if he decides to collect the existing taxes (Wheatkon's Elements of International Law, Coleman Philipson edition 1916, p. 534).

           

22. (a) Article 48 relates to 'taxes, dues and tolls imposed for the benefit of the state.' The terms 'taxes, dues and tolls' represent, from the viewpoint of classifications acceptable to us, taxes, compulsory payments, dues and property taxes (cf. A. Witkon and Y. Ne'eman, Tax Law: Income Tax, Estate Duty and Capital Appreciation Taxes [p. 257] (Schocken, 4th ed., 1969) pp. 4-7, and Bialer v. Minister of Finance (15)), although in the interest of uniformity and simplicity, inclusive expressions may generally be used, like 'tax,' 'taxes' or 'taxation' as the case may be. As mentioned, we are speaking of taxation, the proceeds of which are intended for the purposes of the state.

            The term 'contributions' appearing in Article 49 would be translated as 'dues' or 'tolls.'

            b) Article 48 is made up of two principal parts. The first is the description of circumstances, the factual background, from which emerge other directives and restrictions contained in the second part of the article. Said factual situation arises as indicated, when the military government decides to collect the existing taxes.

           

            The second part of the article contains the provisions that present the principal obligations that derive from the formation of the factual circumstances. These obligations also fall into two groups, as we shall see subsequently.

            Regarding the first part: the conditional circumstances arise, as already mentioned, at the time the military government decides to collect the existing taxes that serve the state, as opposed to taxes that serve any other agencies operating within it. The factual situation described, as appears in the first part of Article 48, follows the pattern of the Brussels Project. However, it must be remembered that the latter was drafted not in a conditional form but in an absolute form that was rejected by the delegates who drafted the Hague Convention, for the reasons set out above.

            The power described is of restrictive significance at another level, and that is, that the decision of the military government to collect the government taxes also obstructs the previous administration from continuing to collect the taxes. In this connection, the learned Frenchman (P. Fauchille, Trait[169] de Droit International Public, (vol. 2, 1921) p. 263) points out that it is in the interest of the occupying power to block the sources of revenue of the enemy, and it can achieve this, inter alia, by taking over the tax revenues. He says that the authority according to Article 48 has two facets:

 

"L'occupant a deux droits correlatifs - (a) le droit d'empecher la perception de l'impot au profit de l'Etat dont il detient une portion du territoire; (b) le droit de percevoir l'impot a sa place."

           

            That is to say, we are speaking of two interdependent rights one of which is the right to prevent the collection of taxes by the defeated state, part of whose territory has been taken over by another state; [p. 258] and the right to collect the tax in its stead (See also R. Lapidot, The Rules of Public International Law Regarding Taxation in Occupied Territory (1968) 3 Tax Quarterly pp. 111-2).

            Regarding the second part: as mentioned above there are two restrictive conditions attached to the collection and use of the tax. One is the manner of collecting the tax, and the other is the manner in which the collected revenues are to be used. First things first: In the matter of the manner of collection there has been a transition from a strict condition in the 1899 version to broader terms in the 1907 version. The 1899 Convention prescribed that collection of taxes should be carried out, to the extent possible, in accordance with the rules in existence and according to the assessment. This added restriction came into being during the discussion on the Brussels Project and the same is true regarding the restriction on the use of the revenues from taxation. (N.R.G. de T. 2nd series, IV, p. 79). The formulation of 1907, as presented by J. B. Scott as mentioned earlier, prescribes, on the other hand, that the tax shall be collected, to the extent possible, in accordance 'with the rules of assessment and incidence in force.' That is to say, in terms of formulation, there was a change in the binding criterion to be obeyed, in so far as possible, according to Article 48: in place of the existing assessment, which in the natural course of things does not change, and will remain the same even under inflationary conditions, for instance, the 'rules of assessment' in the 1907 regulation permit the adoption of changing values that can be affected by changing economic circumstances and the like.

            The 1899 wording related to the collection of tax that was imposed, and whose assessment was determined before the occupation, whereas the 1907 Convention relates only to the principles guiding the manner of imposition of the taxes, and the circumstances under which the obligation to pay arises. Thus, if there remains any doubt about the conclusion to be derived from Article 48 as it was interpreted by the committee in 1907 when taken literally, a comparison between the two versions dispels it.

            The principle is that the duty to follow the rules of assessment and incidence is not absolute: similarly to the Brussels Project, the Hague Convention does not prescribe rigid and absolute rules regarding the collection of tax from which no deviation is permissible. Rather, it stipulates that the guiding principles mentioned above depend upon it being capable of implementation 'as far as possible.' In connection with the flexibility applied to this criterion, at this point it is pertinent to compare this formulation with that of Article 56 of the Hague Convention Regulations for instance, wherein it is clearly stated without conditions or reservations whatsoever that 'any seizure or destruction... is forbidden,' even under circumstances described as the demands of war. [p. 259]

 

            (c) The phrase 'as far as possible' limits the obligation of acting according to the rules of assessment and incidence, and apportionment of the tax burden. As already noted, when the Brussels wording was discussed, the practical ability of implementing the existing arrangements was a condition limiting the obligation to do so. That is, if the matter cannot be executed for reasons such as these, to which we shall refer later, there is no obligation to adopt the principles of assessment and the rules of apportionment of the tax burden, and incidence of imposition and payment of tax.

           

            The question arises, in greater detail, as to the scope for action created by the use of the expression 'as far as possible.' It would seem that the phrase should be interpreted in light of the general understanding expressed in the Convention, for instance, in the letter and spirit of Article 43. Under this article the laws in force are to be honoured, and no change in the law can be made except as a result of substantive data that make it impossible to act in accordance with the article. But comparison of the wording of Articles 43 and 48 of the same Convention, which deal with essentially similar matters, also indicates a difference in the language employed, which reflects varying degrees of emphasis of the prohibition of making changes. Thus, Article 43 says to honour existing law 'as far as possible' while Article 48 says 'unless absolutely prevented.' (See Almakdassa [8] at 581). In terms of severity, one can only conclude from the differences of expression that Article 43 imposed a more absolute obligation than that mentioned in Articles 48 and 49.

            It is obvious that conditions of battle and military pressures can make continuation of action in accordance with existing tax laws incapable of being carried out. However, as stated above, there is no reason to make the possibility of implementation, on the one hand, and the deviation therefrom, on the other, subject to military pressures alone. The simple technicality of missing land registers or lists of debtors, may also constitute cause for precluding implementation, depending on the factual circumstances. It would seem that substantive economic fiscal changes that have a decisive effect on the economic situation and that could render meaningless continued action in accordance with the old rules, may also allow for deviation from those rules.

           

            The British manual suggests that deviation from the existing system of tax collection is permissible only if the officials of the previous government have fled, or if they interfere in any way with the collection of the tax. This is, without a doubt, an example of a situation wherein the collection of the tax cannot be implemented in accordance with the existing pattern. However, we do not know the source of the view described earlier which treats these specific circumstances as the only circumstances in which deviation is permitted. Incidentally, the French Army Manual for Officers of 1893, that preceded the Hague Regulation (Manuel de Droit International a l'Usage des Officers de l'Armee de Terre, (3eme ed. 1893) 95-104) has a more general wording, and a mention of the possibility of imposing a new tax at the existing rates (see the Brussels Project) if it is not possible to collect the existing tax in accordance with the prevailing provisions. [p. 260]

            Every set of circumstances must be examined in the light of its substantive character and its implications. But if, for example, we take a case where many years have passed since the previous government had introduced the existing rules of taxation, and if the economic situation has undergone a drastic change, and no opportunity exists of maintaining a reasonable relationship between the tax collection under the prior criteria and upholding the purpose for which the taxes were intended, as in the second part of Article 48, then rigid adherence to the previous practice does not have to be treated as binding under that article, nor can the article increase the burden falling on the shoulders of the military government because of Article 43, which we will discuss later. In this connection, G. von Glahn, in The Occupation of Enemy Territory (Minneapolis 1957) 151, wrote:

           

"the wording of the Hague Regulations does not prohibit the increase in rates when such increase may be justified truthfully as being in the interest of public order and safety."

 

            The same applies, for example, to very great variations in the level of average income, exchange rates, purchasing power and the like. As we shall see later, the duty of the military government to maintain the vie publique on an ongoing basis, and to do so efficiently, is a legitimate consideration in regard to continuation of the possibility of acting according to the rules that had served the previous administration, which had acted under a decidedly different reality. Every legislative act is subject to a number of relevant considerations, to be dealt with later, but it must always be accompanied by the common denominator of a fixed consideration expressed by the restoration and continuation of orderly government. It is superfluous to emphasize once again that in accordance with the basic concepts that restrict any deviation from the law in force before the occupation, no changes or innovations may be made unless dictated by decisive considerations. Accordingly, the obligation of honouring the existing rules is not to be taken lightly. Only pressures or changes of circumstances of severity as mentioned above (and the list does not purport to be exhaustive) permit abandonment of the existing rules. So far we have dealt with changes that render impossible the implementation of the existing rules for the purposes of the first part of Article 48.

           

            (d) The second obligation, which follows from the decision of the military government to collect the tax, is connected to the condition that determines the disposition of the monies raised. If the military government collects the taxes, which are meant for the state per se, it will thereby be obligated to defray the expenses of administering the territory and at the same time maintain the standard of implementation dictated to it, since under Article 48 it must fulfil its obligations to the same extent that the previous government had been bound.

           

            Incidentally, the identity of the agency collecting the tax does not of necessity determine the disposition of the tax collected. A local agency [p. 261] may collect tax for the central authority and the tax so collected will be treated like the tax mentioned in Article 48 - 'imposed for the benefit of the state' - (G. von Glahn, supra at 152). The same approach applies in reverse. If a given tax is collected by the central government, acting solely as the collecting agent, and the tax is prima facie intended for the local authorities, then it is incumbent on the military government to treat this tax as it would have acted before its establishment, and it is not to treat the tax as a government tax. (See also R. Lapidot, op. cit. at p. 113). Nevertheless, the military government is also competent to supervise the collection of land taxes payable to the local authorities, in order to ensure that they are not used for purposes directed against the military government. (Spaight, War Rights on Land (1911) p. 378).

            This section of the article does not employ here, in connection with defraying the needs of the territory, the wording of 'as far as possible,' nor does it relate to circumstances in which there are insufficient funds for this purpose. However, this may raise the related question of what is the obligation of the occupying power in the event that the sources of revenue in the territory do not produce enough money to defray its administrative expenses? In other words, does that obligate the military government, under Article 43 of 1907, to provide what is required out of its own resources to fulfil its obligation

           

"to restore, and ensure, as far as possible, public order and safety."

           

            This difficulty does not arise in the case before us, and can therefore be left for future consideration. It is dealt with by E. H. Feilchenfeld, supra at 84-85.

            Inherent in the collection of the tax is the obligation to defray expenses according to the standard usual in the past, but regarding surplus revenue, if any, there is nothing in the terms of the provision that requires expenditure of the surplus solely for the needs of the administration of the territory. All that is ensured by the provision is to ensure the priority of defraying the expenses of the administration over other expenditures, without prohibiting the use of the surplus to fill the needs of the military government.

            If the monies collected are insufficient to cover the necessary administrative expenses of the territory, the government also has the option as derived from Article 49, of imposing other obligatory levies. However, regarding these supplementary payments there is clear provision that places absolute restrictions on its use. (See the end of Article 49 in this regard). It can be inferred from what is said in Article 49, according to which monies collected in the framework of supplementary taxation (see the Convention of 1899) or other financial levies are not to be used (as stated in the Convention of 1907) for anything other than military needs, or administrative expenses, thus further strengthening the conclusion that Article 48, whose wording is different, gives priority to defraying the costs of administering the territory, but does not contain a prohibition [p. 262] to render illegitimate the use of surplus revenue, if any, for other purposes. (See the British Manual, para. 527, p. 146).

           

23. (a) Article 49 of the Hague Regulations of 1907 recognized by implication the authority of the military government to impose levies. This authority is not conditional on the inability to collect the existing taxes (compare Article 58 of the Brussels Project), since the article we are dealing with speaks of collection of taxes in addition to those mentioned in Article 48. That is to say, the Hague Regulations removed the restriction according to which taxes were to be imposed only in place of taxes not collected, or instead of requisitioned property, or imposition of fines, as was customary when the Brussels Project and the Oxford proposals were drafted. The restriction was now expressed by indicating the purpose for which the collected tax may be used. (D. A. Graber, supra at 251, but see the contrary view of R. Jacomet, Les Lois de la Guerre Continentale, (Paris, 1913) 9-80).

            Article 49 also employs a conditional wording, i.e., all it prescribes is that if the occupying power collects other taxes, there arises the concurrent absolute obligation to use the income for military needs, or for the administration of the territory. This income cannot be used, as stated, to serve any other purpose, and all that has been said above about surplus revenue from existing taxes does not apply here. All that the article indicates, as mentioned, is the disposition of the income, if taxes were imposed, with no detail as to when and under what conditions the levy can be instituted. We therefore said above that we can learn of the existence of the right to impose taxes by implication only.

            The purposes for which the tax revenue is intended are military needs, which means participation in the war effort, or needs of the government of the territory, and no more. The purpose of detailing the aims as stated is to prevent the application of the taxes for the enrichment of the occupying power. As put by Edouard Rolin, the rapporteur:

           

"On the whole, what is forbidden is levying contributions for the purpose of enriching myself." (J. B. Scott, supra at 151).

 

(See also the British Manual. para. 605. p. 168).

 

            To complete the picture, it is well to recall the conclusion that the Convention in its present wording is sufficient to prevent the subjective use of the monies collected as levies so that their collection will not revert to a means of self-enrichment, or for pressuring the population, was not everyone's opinion. There were those who thought that the Convention did not contain a clear and detailed prohibition such as this, despite the fact that it should, and it still requires clarification and completion on this point. [p. 263] (See Hyde, International Law, Chiefly as Interpreted and Applied by the United States, (Boston, 1922) Sec. 692; J.W. Garner, International Law and World War, (New York, Vol. II, 1920) 114).

           

            There is no denying that the use of the authority to impose levies, according to the examples taken from the accounts of E. H. Feilchenfeld and W. Winthrop and others, strengthens the doubts of J. W. Garner and Hyde, as above, regarding the use of force in the imposition of levies. However, it seems that the aberration in the use of taxes which occurred in practice did not actually come about through the vagueness of the wording of the article or a lack in the accompanying interpretative rule.

 

            (b) As indicated, we are dealing here with 'contributions.' Article 49 of the Convention of 1899 referred to 'other money taxes' i.e., as if the same applies to supplementary 'taxation.' But the expression employed in the 1907 Convention clearly referred to contributions in money, which are parallel, and even identical in substance, to levies in the form of requisitions in kind (as stated in Article 52) which in the English text, in the translation of the 3rd paragraph of Article 52 as cited by J. B. Scott, are called 'presentations in nature.' The British Manual, in connection with the latter, suggested the translation 'supplies in kind.' (The British Manual, para. 605, p. 168).

           

            Incidentally, para. 605 of the British Manual avoids the proper distinction, as required by the wording of Article 52, between 'requisitions in kind and in services and seizure in kind.' In this connection, the British Manual says that:

           

"Cash, over and above taxes, may be requisitioned from the inhabitants, and is then called a 'contribution.' " (My emphasis - M. Shamgar)

 

            The use of the word 'requisition' in this connection is imprecise, (see also E. H. Feilchenfeld, supra at 41) but that is not our concern here.

            What are these contributions? They are the imposition of the payment of sums of money, taking the form of a quota fixed in advance or a similar forced imposition of payments upon a settlement or its inhabitants or every resident of the State. To a great degree this is an act of war of the victor as such, reminiscent of the vae victis story of Livy (vol. 5, 48).

            A list of examples regarding exercising of the authority to impose 'contributions' is given, inter alia, by E. H. Feilchenfeld, supra at 41-43. From these we may infer the nature of the obligation [p. 264] and the basic difference between a contribution and ordinary taxation, direct or indirect, which is related to the fiscal or economic processes of a territory and not with the simple and apparent aim of filling the coffers of the State that is the victor, either temporarily or permanently. The following instructive passages are from examples cited by E. H. Feilchenfeld, ibid., 42-44:

 

"169. Germany was accused in both 1870-71 and 1914-18, of levying excessive contributions not justified by the needs of the army. In examining such accusations it should not be overlooked, however, that some excesses were committed as allegedly lawful reprisals, that the financial needs of modern armies are very great, and that the ultimate use of contributed money is not as easily checked as that of a requisitioned article.

 

170. In 1866 Prussia imposed a heavy contribution on the city of Frankfurt. In 1870-71 almost all occupied cities were forced by the Germans to pay contributions which, it was alleged, were higher than justified by the needs of the occupying army. Thus, the Department of the Lower Seine was forced to pay 24,000,000 francs, and Rouen over 6,000,000 francs, within five days.

Paris, after its capitulation, had to pay a contribution of 200,000,000 francs within a few days. The levying of contributions continued after the signing of an armistice. However, the total of contributions was lower than that of requisitions, which was estimated at 327,581,506 francs....

 

172. During the War of 1914-18, the German occupation authorities in Belgium levied special contributions on many cities, towns, and villages. In addition, by a decree of December 10, 1914, they imposed a general contribution of 480,000,000 francs on the nine occupied Belgian provinces....

 

173. In November, 1915, this contribution was extended indefinitely, and in November, 1916, it was increased by 10,000,000 francs. A third contribution of [p. 265] 300,000,000 francs was imposed on November 20, 1916. This time the monthly payments were raised from 40,000,000 francs to 50,000,000 francs. The fourth contribution came only half a year later, on May 21, 1917. Monthly payments were again raised by 10,000,000 francs per month, being fixed at 60,000,000 francs per month, which remained the amount payable to the end of the occupation...

 

175. In France, during the first few months of the war, the Germans collected over 10,000,000 francs from Lille, Amiens, Roubaix, Tourcoing, Lens, and Armentieres.

 

176. In Rumania the Central Powers imposed a contribution of 250,000,000 lei, but merely in order to cover salary and administration expenses. There is no account of any controversy over this measure.

 

177. The German practices were severely condemned by writers after 1918. Some voices were raised in favor of a total abolition of contribution. Others suggested that a more definite term than 'needs of the army' should be adopted."

 

            The imposition of forced payments as aforesaid was a practice obviously not peculiar to the Prussian or German armies. N. Winthrop, in his classic work on military law (Military Law and Precedents (Washington 2nd ed., 1920) 806) describes some of the incidents of the 19th century, and adds:

           

"Contributions as have been exacted in nearly all the European wars, and conspicuously in the conquests of the English in India, are generally expressed to be for the purpose of defraying the expenses of the war. A contribution may also be levied for the paying of the cost of the military government itself during the period of occupation. Or it may be justified as a penalty imposed upon the conquered nation for having initiated hostilities in violation of treaty or otherwise without legitimate excuse; [p. 266] or as a commutation for the plunder to which the population would otherwise be subject, or a compensation for the protection of life and property and preservation of order under circumstances of difficulty; or as a mulct for the commission by the troops or people of the invaded country of acts specially injurious to the occupying army or to the persons under the protection.

 

            Contributions are generally exacted not from individuals but from the enemy government, or from communities in the mass - as from separate districts, towns, etc., and through the local authorities. Thus, upon the conquest of Mexico in 1847, Gen. Scott levied assessments, (G.O. 287, 395, Hdqrs. of Army, 1847) 'for the support of the American military occupation,' upon the nineteen States of that Republic, in sums from $5,000 to $688,332, the latter being the amount levied upon the Capital. Previously, 1825 in March of the same year, at Monterey, Gen. Taylor had made and enforced an assessment upon the inhabitants of Tamaulipas, New Leon and Coahuila, by way of indemnification for the pillage and destruction of his wagon trains...

            Scott states in his Autobiography (p. 582) that there actually came into his hands 'about $220,000,' of which $102,000 was expended for the benefit of the soldiers, and $118,000 was sent to Washington for the purposes of the founding of an Army Asylum - the present 'Soldiers' Home.' Strictly, this latter, as being in the nature of an investment of the contribution for the profit of the Government, was not a legitimate use of the funds."

           

            See also: Spaight, War Rights on Land (1911) 303; J. W. Garner, Community Fines and Collective Responsibility, 11 Supp. Am. J. Int'l. L. (1917) 511, International Law, vol. 2, supra at 106; D. A. Graber, supra at 217, 285.

           

            Thus all this does not speak of ordinary taxation but a special and exceptional contribution in the form of compulsory collection of money for defined purposes, necessitated by the circumstances of occupation and the requirements of the military government, and constitutes [p. 267] a substantive part of the occupying power's means of defraying its expenses, and also to oppress the population. Therefore, why was it deemed necessary to attach to the very mention of the possible exercise of the said authority of the military express restrictions regarding the legitimate purpose of the contributions and flexible restrictions as to the means of imposition and collection (see J. B. Scott, supra at 150)? As explained, the subject matter is a contribution, the purpose of which is to raise funds for the needs of the army and therefore this authority is similar or parallel to the requisitioning of vehicles or other movable items required for the operations of the army. The explanations of the British Manual dealing with the purposes of the contribution and its disposition indicate directly its character as a direct military and financial means, the main purpose of which is to defray the cost of maintaining the occupying military forces or the administration of the territory, as stated in the Manual (para. 606, p. 168):

           

"The purpose of the contributions is to distribute the burden of requisitioning between the towns and the more productive country districts, cash contributed from the former being used to purchase produce in the latter."

 

            The contributions are not and have never been the sole exclusive means of collecting money from the local population for the requirements of the army. It is sufficient to mention here also collective fines and compulsory loans (see E. H. Feilchenfeld, supra at 46-47).

           

            (c) With regard to the manner of collecting the contributions, Article 51 of 1907 prescribes a series of formal limitations, some of them singular to contributions and some similar to those applicable to 'collection of the existing taxes':

           

"No contribution shall be collected except under a written order, and on the responsibility of a commander-in-chief.

            The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force.

            For every contribution a receipt shall be given to the contributor."

 

(Compare Article 41 of the Brussels Project).

            (d) In the occupied territories which have been administered by the Israel Defence Forces since 1967, no use has ever been made of the power to levy contributions, fines or forced loans.

           

24. It is possible to attempt to summarize for our purpose the conclusions ensuing from the wording of Articles 48 and 49. [p. 268]

 

            (a) No explicit provision can be found in the wording of the 1899 or 1907 Conventions that "it is forbidden to levy taxes on the population." This means that the most extravagant argument can only take the form of a conclusion implied by the wording, but not the form of a conclusion derived from a clearly expressed provision. Moreover, as we shall see, the implications of that stated in Article 48 are not to be tested within the narrow limits confined by the wording of the article, which, as mentioned, contains nothing to allow an unequivocal conclusion to be drawn regarding the limitations of what is permitted in the area of taxation, but the matter must be considered in the light of the nature of the military government, and its duties and responsibilities towards the territory it controls.

           

            (b) From the wording of Articles 48 and 49 and from the study of the projects and proposals that were prepared prior to the formulation of the Conventions, we can infer that the parties which convened to draft the Conventions wished to avoid as far as possible any all-embracing positive determination of what is permitted and what is forbidden, and that they merely sought to limit the scope of action to a case where either one of two sets of circumstances would arise, that is, the collection of taxes by the occupying power, for the needs of the state, or the imposition of compulsory contributions. If either of these were to occur, the occupying power would be limited in the means of implementation and disposition of revenue, as set forth in the Hague Regulations.

           

            (c) Regarding means of implementation, that is, the rules of assessment and the rules of incidence, the obligation is neither decisive nor absolute. Rather, it is flexible to no small degree and conditional upon the existing rules still being capable of implementation. The concept of 'as far as possible' may vary with the circumstances and something that is possible under a certain given set of circumstances may become impossible under another. The essence is that the rules of assessment i.e., the rules which determine the amount to be collected, and the rules of incidence and apportionment, which are the rules that determine from whom the tax is to be collected, may vary, of course, in the course of time, or if the objective conditions change substantively. In this regard, there is no logic in applying the same criterion to a newly established military government and to a military government that has administered a territory with all the problems of civil administration, for ten years or more.

 

            (d) As regards contributions, it is not explicitly laid down that it is the sole, exclusive means of continuing to raise revenue from the population. It was merely said that if the military government exercises the relevant authority, then the sole use of the revenue shall be as prescribed by the last part of Article 49.

           

            (e) Contributions are a distinctly military coercive measure, a direct result of the assumption of control by the victor. They are expressed in the forced collection of money destined to flow directly into the coffers of the military. They have no connection with taxation (customs duties or indirect taxation, for example) that are civilian in status, purpose and form. [p. 269]

           

25. (a) It may be argued that there is a bond between Articles 48 and 49, as indicated by the wording of the reference in Article 49, and that this has implications as to the extent of the powers of the military governor. To what does this apply? Article 49 of 1907, as its wording shows, is concerned with the imposition of other contributions (other money contributions), and this:

 

"in addition to the taxes mentioned in the above article."

           

            That is to say that, as it were, it can be inferred that the taxes, dues, tolls and land taxes mentioned in Article 48 are merely forms of contribution, and it could be argued that the implication of Article 49 is that the only addition in the area of taxes to that deriving from Article 48 is that which arises from the provisions of Article 49, and nothing more. This means that, if the existing taxes are insufficient, the military is permitted to make up the deficit by means of imposing forced contributions, but in no other manner.

           

            (b) The conclusion reached in sub-paragraph (a) above is not in accord with the nature of the fiscal concepts as expressed in the wording of the Regulations. There is no substantive similarity, in terms of classification and in terms of nature and substance, between "taxes, dues and tolls" on the one hand, and on the other, between "contributions" which, as described, are a forced military levy, which is the result of the belligerent occupation. As L. Oppenheim succinctly defines it, supra at 408:

           

            "Requisitions and contributions in war are the outcome of the eternal principal that war must support war. This means that every belligerent may make his enemy pay, as far as possible, for the continuation of the war."

            (A more restrictive view is expressed by E. H. Feilchenfeld, supra at 41).

           

            The use of "other" in connection with "money contributions" in relation to "taxes" is therefore a generalization, which leads to inaccuracy. It is obvious that any collection of money can be called "taxes," and that every tax is a "contribution" to the government controlling a given territory at a particular time, but except for this general similarity, the two kinds of payments ("taxes" on one hand, and "contributions" on the other) are not to be placed in the same framework. The word "other" which qualifies "money contributions" is merely a relic from the wording of the 1899 Regulations, which related in Article 49 thereof to "other money taxes."

           

            Had the first part of Articles 48 and 49 delineated a positive framework for what was permitted and what was prohibited, it would, of course, have been possible to infer from the variation of the terminology of Article 49 ("money taxes" in the 1899 Regulations, and "money contributions" in 1907) what constituted the limit of the power and authority of the military government. In other words, it could have been argued that while the 1899 wording [p. 270] permitted the imposition of additional taxes, the 1907 version permits only the imposition of war contributions, and nothing else. However, the first part is merely a circumstantial element and merely contains a presentation of a series of theoretical facts, in the form of a conditional clause, accompanied by the remark that if the circumstances described in the conditional arise, the factual background will be created, which will require action according to certain legal constraints. This means that the words "money taxes" or "money contributions" are included only as a description of a theoretical situation, and one cannot conclude that all alternatives have been exhausted thereby.

           

For this reason it was not argued, for example, that forced loans (see E. H. Feilchenfeld, supra at 46) are also illegal, since they are not mentioned in the Hague Regulations. Feilchenfeld (ibid. at 92) found nothing wrong even in forced loans for the benefit of private persons, a matter of which there is also no mention or hint in the Regulations.

            The central point - where the judicial rules are entrenched - is incorporated only in the legal component, i.e., the limitations expressed at the end of Article 48, the end of Article 49 and in Article 51, that present the limitations of the permitted and prohibited in the event that the factual component exists, i.e., when the military government decides to act in one of the ways presented at the beginning of Articles 48 and 49, whichever the case.

           

            (c) Any view that seeks to limit the authority of the occupying power only to the collection of taxes that existed before the occupation and the imposition of war contributions, and nothing more, is not without basis in the laws of war. According to the perception of its supporters, who wish to give it a theoretical foundation, it is anchored in the fundamental doctrine of the laws of war, according to which the military government merely temporarily fills the place of the previous administration that was defeated in the war. Its power and authority derive from its military status and its military government, which arises from its effective control of the territory and from the inability of the previous government to continue to fulfil its function and exercise its powers. According to L. Oppenheim, supra vol. II at 436-37:

 

"...as the legitimate Government is prevented from exercising its authority, the occupant requires a temporary right of administration over the territory and its inhabitants....the administration of the occupant is in no wise to be compared with ordinary administration, for it is distinctly and precisely military administration."

 

            Since the power of imposing ordinary taxes are within the domain of the sovereign alone, accordingly, it is argued, it does not pertain to anyone whose authority is temporary and military, as described. However, while no one disputes [p. 271] the theoretical base of this doctrine, it does not of necessity create a limitation on the power to impose taxation if the benefit and requirements of the territory deem it necessary, since the maintenance of proper balance between them and the requirements of the ruling army is a constant central guiding principle of military government. This character of military government indeed explains why taxes may be imposed only for the requirements of the territory (or requirements of the army when army contributions are involved), but it does not necessarily lead to the conclusion that the limitation on the imposition of taxes also takes precedence over the obligation to satisfy the needs of the territory and its inhabitants, and as far as possible, to restore normal life, including the economic aspect thereof.

           

(d) Furthermore, the military government may not impose on the inhabitants of a territory taxes intended for the coffers of the state on whose behalf it is acting, even if they are levied on the inhabitants of the territory after they were forcefully transferred to the area of the mother state of the military government (J. Fried, Transfer of Civilian Manpower from Occupied Territory, Am. J. Int. L. 40) (1946) 303, 316. However, here the lack of legitimacy of the taxation as described stems from over-stepping of the power of the state to levy taxes, power which is limited to the territory under its jurisdiction, and does not apply to those who were transferred within its borders against their will (St. Louis v. the Ferry Co. (1870) [24] at 430).

            Parallels can be drawn between the rules applying to the said authorities of the state within its own frontiers, and the powers of the military government to impose taxation because of circumstances derived from the needs of the territory and the needs and welfare of its inhabitants. E. Isay says, in Internationales Finanzrecht: Eine Untersuchung [248]ber die - ausseren Grenzen der Staatlichen Finanzgewalt (Stuttgart, 1934) 48:

           

"Taxation of aliens always requires a special justification. Therefore, we (experts on the international finance) have established the doctrine of equivalence: as a matter of principle, a foreigner may be taxed only to the extent to which such taxes form a counter-value for the advantages that he derives from his contact with the regime (inlandische Staatsordnung). Taxes which go beyond this extent are illegal. To demand (zu muten) from a foreigner that he should, without benefiting from the state, enhance the purposes of such state by contributing a part of his own assets, would mean to ask membership fees from a non-member who is prevented from receiving even a limited number of advantages resulting from membership. To subject a foreigner to taxation [p. 272] which is not the counter-value of benefits granted to him, is a usurpation."

           

            The foregoing clearly does not apply to the subject of taxation in military government territory and for the benefit thereof, but the notion it embraces is that the relationship between the imposition of tax on a non-citizen and the return expected by him from the fiscal measure, should rightly be examined. This relationship, in the form it takes in the laws of war, takes us back to the matter of the duty of the military government according to Article 43 of the Hague Regulations. Having returned to this question, examination is required as to the implications in terms of the residents of the territory, in the event that the limitation as argued above is applied to the authority to impose taxation.

 

            (e) The thesis of exclusivity of the authority under article 49 as a singular deviation from that described in Article 48 is extreme in terms of its significance for the local population, for whose protection the Hague Regulations are specifically intended. We can take as an example the case where the needs of the territory change as a result of the extension of services to the inhabitants. If Articles 48 and 49 are exclusive, then ordinary fiscal measures would be unable to defray the necessary expenditures. The military government will not be able to adjust the direct and indirect tax structure to changing needs, although such taxation is considered an acceptable and orderly means as long as they conform to the economic conditions of the area and the capacity of the economy operating therein, and as long as the limitations on the purposes of the revenues are respected. If the old tax system has become obsolescent and has lost touch with the new economic conditions, only one harsh and extreme alternative, as it were, seems to remain for the military government, and that is to impose military contributions, which will take money directly from the pockets of the inhabitants, in keeping with the age-old custom of the armies of all parties in many of the military campaigns of the past century and the beginning of this century, some of whose exploits are described by W. Winthrop and E. H. Feilchenfeld (supra).

            It would appear to be more reasonable to conclude that the greater includes the lesser (as E. H. Feilchenfeld believes, supra at 46), and that if contributions may be levied, the more moderate means may also be employed. It is difficult to reach the conclusion that narrowing the scope of discretion to a choice between two exclusive alternatives - i.e., existing taxation on the one hand, or compulsory contribution on the other - accurately reflects the spirit of the Hague Conventions and the intentions of those who drafted them. It certainly does not fit in with a modern vital and developing economy, and because of this it conflicts with the concept expressed in Article 43, to which we will yet return later. The fact must not be overlooked, that freezing taxation activities in their general form as employed by the military government in the beginning of its rule may bring about over the years, particularly if a few decades are involved, a freezing of the economy, cause its fluctuations, development and self-adjustment to the changes taking place in the world economy, the economy of the area, and the economy of the state which is responsible to the military government, to be ignored if the latter [p. 273] has any implication on the economy of the area under military control. In any event, the inflexibility involved in the contention, the significance of the practical application of which is under discussion here, does not necessarily follow from the wording of the Hague Regulations.

 

            (f) In principle, even if we were to adopt an extreme interpretation as was presented at the beginning of sub-paragraph (2), there is no dispute that the wording of Article 48, contains a clear and obvious opening for flexibility as far as it relates to the means of implementation and rules of incidence, and Article 49 offers an opening to the imposition of additional payments on the inhabitants. There are no restrictions on the frequency of the contribution, nor any real limitation on its accompanying considerations, its means of collection, its extent, the individual rates to be prescribed by virtue thereof, or other features of this kind. The only restriction is that of the purpose of the levy ("the needs of the military" and "requirements of the administration of the territory"), which leaves a very wide opening, as well as restrictions of no practical significance under Article 51, regarding determination of who is to be the decision-maker, following as far as possible, the rules of assessment and incidence, and the obligation to issue receipts.

           

            (g) D.A. Graber, supra at 290, indicates a limitation entrenched in the Hague Regulations. She indicates that, in view of the many complexities which were involved in the occupation of territory in our time, particularly during World War II, when extensive areas were militarily occupied under military rule for extended periods, the only conclusion to be drawn is that the Hague Regulations and the literature of the period up to 1914 are too fragmentary and inadequate to serve as a suitable guide to the practice of military government. Many of the provisions employed very general wording and left their meaning unclear. She believes that the explanation for this lies in the fact that they were formulated during a relatively calm period, during which:

           

"belligerent occupations were generally of a short duration so that occupants were not forced to assume the full governmental burdens which had rested on the displaced sovereign."

 

This means that a lengthy military occupation, which would be required to find solutions for a wide range of day-to-day problems, similar to those an ordinary government would encounter, is likely not to find answers to its questions in the provisions of the Regulations.

 

            (h) To summarize, in view of the absence of an unequivocal provision in Article 48, and since inferences may be drawn from the other provisions of the Regulations on how to fill with content the lacuna created by the wording of Articles 48 and 49, which was adopted as a result of the proposals of A. Beernaert and others who took the same approach, as described above, it is right and proper that any examination of the question of taxation take into account the ramifications arising from the more general provisions contained in Article 43 of the Convention. [p. 274] This article deals with the obligation to maintain "l'ordre et la vie publique" and the obligation to uphold the existing law, unless it is absolutely prevented from so doing (Almakdassa [8] at 581). The applicability of this article hereto will, of course, be clarified at a later point.

           

26. (a) The scope of activity permitted under Articles 48 and 49, which in terms of wording express avoidance of an exhaustive and exclusive treatment of the subject of taxation, has found expression in the interpretation of the rules of customary international law, given in the legal literature, and this subject requires separate treatment, as will be given later.

            (b) Reference to the legal literature dealing with the matter before us obliges repetition of a preliminary remark: That which is stated in the said literature does not merely constitute interpretation. of the Conventions, which themselves are in a form of codification of customary rules. Rather, they can also serve as an independent source indicating the existence of an international custom, as evidence of general practice, which is recognized as law (Prof. Y. Dinstein, op. cit. , p. 44) i. e., in so far as it pertains to the matter before us, even without regard specifically to the Hague Regulations. Therefore, attention must be paid to the foundations upon which rest the conclusion of a particular legal expert, that is to say, is he attempting to interpret the Hague Convention or is he referring to a custom that has taken hold and exists without corresponding to what the Convention actually provides, the description of which does not come within the ambit of what is stated in the Regulations? It is superfluous to add, that both alternatives are relevant to the matter before us.

            A defined and accepted custom prohibiting the levying of a new tax could on the face of it have developed only after the Regulations were drafted, since had there been an existing, prevailing, and binding custom as aforesaid at that time, it would have left clearer indications in the Regulations, despite the reservations of Mr. Beernaert. However, the work preceding the drafting of the Regulations do not lead to the conclusion that during the period preceding the Regulations there was, in fact, any general practice as aforesaid which was recognized as law, but rather the reverse: what is indicated by the projects and proposals, which preceded the Regulations as mentioned above, is that there was no consensus on the matter of the authority to levy a new tax, nor does the practice then prevailing lead to a different conclusion.

           

            (c) In 1870, the Germans revoked the validity of the French customs laws (A. Merignhac, Les Lois et Coutumes de la Guerre (1903) 258), as did the U.S.A. in its war against Spain (La Fur, R. G. de D.I.P. (1898) vol. V, 749).

           

            In 1870, the Germans imposed a new, uniform tax in place of all the various taxes that had previously been in force in Occupied France (Nys, Le Droit International (1906) vol. III 336; E. Loening, R.D.I. et de L. Comp vol. V (1873) 120). [p. 275] The Russians did likewise in Bulgaria, as did the Italians in North Africa, and the Turks in Greece. In reference to the Greek-Turkish War of 1897, N. Politis mentions that the latter imposed a new tax on sheep in Thessaly, and in practice also replaced the excise on salt and tobacco with a new excise (Revue General de Droit International Public (1897) vol. 4, 680, 702, 710), and during the Spanish-American War (1898), as mentioned, the United States changed the customs laws immediately upon the capture of Cuba (R.D.I.P. t.v. 805).

           

            (d) Even during the period following the establishment of the Regulations, there are no signs of the emergence of a different recognized practice. Rather, the opposite is true, which led to the opinion of Sir A. Wilson in his work The Law of War in Occupied Territories (Transactions of Grotius Society) (1933, vol. 18) 17, 33, which deals with the first World War, that new taxes may be imposed, if there arose conditions that were such that the sovereign would have done the same had it continued in power, that is, if it were required for the orderly administration of the territory. A modern reflection of this approach may be found in the works of Prof. J. Stone, to which we shall refer later. Of the new taxes imposed subsequent to the Hague Regulations of 1907, Le Fur mentions the tax on sheep (beglouk) imposed by Bulgaria in the first World War in the occupied areas of Serbia (R.D.I.P. vol. 5, 804). To this example may be added the tax on chattels imposed in occupied Belgium by the Germans in 1917 (W. R. Bisschop, German War Legislation in Belgium, Transactions of the Grotius Society (1919, vol. 4) 110, 140. See also P. Fauchille, supra 265).

            The French introduced their own customs tariff in Alsace-Lorraine in force from 1.2.1919 (Journal Officiel der 31.1.1919, p. 1142) despite the fact that the jurisdiction thereover only returned to France by the Versailles Treaty on 28.6.1919 (Article 51); the return of sovereignty was ratified retroactively from 11.11.1918, apparently so as to legalize actions that were taken during the intermediate period between the Armistice and the signing of the peace treaty. The implied validation arising from the retroactive ratification of the imposition of sovereignty does not, of course, indicate anything about the practice prevailing before the signing of the Versailles Treaty.

 

            (e) R. Lemken describes German customs during the Second World War in Europe (Axis Rule in Occupied Europe (Washington, by H. Fertig, 1973) 63, 64). The theoretical basis he presents is that the occupying power is permitted to collect taxes only for defraying the required expenses of administering the territory. It may well have the power to change the procedure of assessment of the tax since Article 48 adopted the well-known inconclusive wording (i.e., "as far as possible"). However, these changes are allowed only if they are essential for maintenance of orderly administration in the territory. He therefore [p. 276] disqualifies the German edicts in Poland which introduced tax exemptions which were granted only to German residents of Poland, (ibid., at 225) and he also criticizes the high poll tax which was imposed on settled areas and collected from the population there (Edict of the German Finance Minister, 9.12.1940).

 

            (f) During the period of the Allied Military Government in Germany, after the First and Second World Wars, the problem of new taxation apparently never arose. The economic crisis after the First World War (E. Fraenkel, supra at 13) and the general economic collapse after the Second World War (H. Zink, American Government in Germany (New York, 1977) 108) prevented the orderly functioning of any taxation from the outset.

           

            (g) Naturally, it is of special interest to examine the system that operated in this country when it was under British Military occupation after it was captured from the Ottoman Empire. On 7.5.1918 the Military Government proclaimed the renewal of the collection of taxes that had been in force during the period of Ottoman rule (N. Bentwich, Reinstatement of Taxes, Legislation of Palestine, 1918-1925 (Alexandria, 1926) 369) which led to the proclamation regarding Export Duties and House and Land Taxes (15.11.1918, p. 371).

            However, the civil administration acting on behalf of the Military government, also introduced new taxes from 1921 onward (Port Dues Ordinance 1921, vol. I, 133 Foreign Imports Additional; Duty Ordinance 1921 vol. I, 650; Tobacco Taxation Ordinance 1921, vol. I, 651) and also enacted extensive legislation relating to banking, mortgages and guarantees. It also issued orders for the re-evaluation of land for the purpose of house and land tax. Re-evaluation of Land for Purpose of House and Land Tax, vol. II, 42).

           

27. It is clearly impracticable to review the legal literature in its entirety. One can only carry out a selective examination, taking care to present and reflect adequately the variety of views on the subject before us.

            We may commence by saying that the conclusion that clearly emerges from a review of the legal literature is that there is no single clearly established view testifying to the existence of a rule in customary international law prohibiting the imposition of a new tax under all circumstances. It is highly doubtful whether one might say that a majority opinion exists, let alone that there is a decisive majority (H. Kelsen, supra loc. cit.) supporting the thesis of the Petitioners. The views vary in favour of both parties and the conclusion arising therefrom, which adds to that which arises from the wording of the Regulations, and corresponds to that which is implied by the content thereof, will be presented and the end of this review. From here, let us proceed to a sampling of opinions that appear in judiciary literature. [p. 277]

           

28. Looking at the literature chronologically, the British and American Army Manuals, dating from before the First World War, set broad limits to the powers of the military government. However, they nevertheless noted the obligation to maintain the prevailing law as far as possible (Great Britain, War Office, Manual of Military Law (6th ed.) 288-291; U.S. War Department, Rules of Land Warfare 1914, 108-111). Inter alia it was noted that the legislative, administrative and executive powers of the sovereign passed to the army for the duration of its rule. The latter may exercise only such powers as required by the needs of the war, the preservation of public order and security, and the orderly administration of the area. It was also noted that the need to change the tax laws might arise, although the view was expressed that no new tax was to be imposed (spaight, supra at 378-380). Bonfils et Fauchille, Manuel de Droit International Public (7eme ed., 1914) 839, pointed out that the military government may be compelled to change the system of tax collection.

 

29. P. Fauchille, Traite de Droit International Public (Paris, Tome II, 29 (Guerre et Neutralite, 1921) 264, para. 1189), holds that the military government does not lawfully have the power to impose new taxes. To quote:

 

"...il ne peut pas legitimement creer des impots nouveaux."

           

            The writer nevertheless suggested that a method comprising embodiment of all the existing taxes, forming them into a single new tax would be legitimate. It may happen, he describes, that tax officials will resign, or flee with the retreating forces, where the military government would be unable to collect all the taxes by recruiting new clerks capable of collecting the indirect or direct taxes. In this event, or any similar circumstance, tax will be collected by collecting a total "equivalence" sum. Incidentally, this expression takes us back to the phrasing of the Brussels Project of 1874.

           

"On totalisera le rendement de tous les impots directs ou indirects que devait produire le pays occupe d'apres la loi de finances. Cette somme totale sera repartie entre les arrondissement ou provinces, puis entre les communes de l'arrondissement ou de la province, et enfin entres les habitants de chaque commune". (P. Fauchille, ibid., 264, para. 1190)

 

That is to say, it is permissible to total up all the expected revenue from all taxes, direct and indirect, amount, and to divide the total sum received anew amongst the districts, communities and residents thereof. [p. 288] It is superfluous to stress that this method in practice will lead to the introduction of a new tax. Since totalling indirect and direct taxes and imposing them on the residents, by place of residence, leads to the imposition of a new tax not only in theory, but in practice as well, a tax that the resident would often not have had to pay at all if not for the method of embodiment and totalling as described above, the more so since, according to P. Fauchille, it is possible to include contributions, as a further component, as long as the rates are not exaggerated (P. Fauchille, supra at 265, para. 1190). This means that P. Fauchille's words create an opening for taxation created by the military government, in a form of imposition and collection, and in a scope entirely different from the existing taxation. In other words, while Fauchille clings to the view that there is an obligation to maintain existing frameworks of taxation, and to treat the declaration of a new tax as illegitimate, he nevertheless holds that the term "existing framework" includes the entire series of existing frameworks , which were joined together and imposed on the individual in a matter which in practice is not unlike new taxation .

 

30. Hyde, in his International Law (2nd ed., vol. II, 1951) of 1886, maintains:

 

"The military occupant enjoys large freedom in the mode of raising revenues to defray expenses of administration, as well as in the application of funds acquired for that purpose..."

 

            A similar opinion is expressed by Colby in his article Occupation under the Laws of War 26 Columbia Law Review (1926) 146, 166, 168.

            In this respect, Hyde even adopts the view of P. Fauchille that taxes may be combined and re-allocated according to the internal administrative division of the territory for collection from the population, as he says:

           

            "as a capitation tax or otherwise"

           

            For the purpose of this thesis Hyde relies on the Manual of the U.S. Army (U.S. War Department Rules of Land Warfare from 1940, para. 294).

            In connection with the imposition of new taxes, Hyde writes, the Manual of the War Department of the U.S. published in 1934 said that the imposition of a new tax was prohibited, since that power was retained by the sovereign alone and the military government is entitled only to impose contributions or to seize property. However, Hyde chose to stress that no such declaration was included in the new edition of the Manual in 1940. Moreover, he added (supra at 1887): [p. 279]

           

"Doubtless the occupant may lay duties on imports and thereby obtain a convenient source of revenue otherwise difficult to collect. American military occupants resorted to such procedure.... "(Emphasis mine - M. S.)

 

            The argument regarding the practice followed by the American military governments is based on C. E. Magoon, Reports on the Law of Civil Government under Military Occupation (Washington, 1902) which cites the Order of President McKinley of 12 July 1898 concerning customs duties and taxes in the Philippines, which was under American military rule at the time. According to C. E. Magoon, ibid., at 227:

           

"It would seem that the payment of customs duties, if considered as taxes levied by a government resulting from military occupation of hostile territory or as military contribution required from hostile territory or as a condition imposed upon the right of trade with hostile territory, are each and all legitimate and lawful requirements imposed by exercise of belligerent right."

 

            The thesis that follows from the above is that it is possible to identify and accord all the provisions affecting imports (and according to Magoon, also trade with the enemy territory), to the ambit of the military government and in this field it is permissible to impose new taxation.

           

            Had the Hague Regulations contained a prohibition of new taxation, there would have been no place for the above distinction, since Articles 48 or 49 do not differentiate or make distinctions between import, export or any other particular area. It also follows that Hyde, who relies, inter alia, on Magoon, does not hold that the Hague Regulations of 1907 changed in any way the right of the military government to impose new taxation on imports. Hyde's reference to contributions also tells us about the relative freedom of action he propounds. He says that contributions are only

           

            "such payments in money as exceed the produce of the taxes"

 

and he holds that:

 

"By a method other than the imposition of taxes or the collection of customs duties, a belligerent may in fact [p. 280] proceed to increase his revenues from the territory under his control. He may levy contributions."

 

            That is, contributions, which are in effect any payment levied in excess of existing obligations are a legitimate means of increasing the revenues of the military government.

            As a consequence of the above approach of Hyde, he also recommended (supra at 1888) that the Conventions prescribe clear and more precise limitations on the authority to impose contributions, in order to avoid self-enrichment of the military government.

            Incidentally, this is the place to mention that some legal scholars hold that contributions should be levied only upon communities and settlements and not directly upon residents as individuals (J. W. Garner, supra at 115, Contributions, Requisitions and Compulsory Service in Occupied Territory, 11 Supp. Am. J. Int. L. (1917) 74, 83. However, it seems that this viewpoint, which was not adopted as a practice, is only theoretical anyway, since contributions are not collected from the settlement funds only, but ultimately from the residents of the settlement (see K. Strupp and H.J. Schlochauer, Woerterbuch des Voelkerrichts (Berlin, vol. II, 1961) 299, para. 3(c)).

           

31. (a) In his article The Legal Relations Between an Occupying Power and the Inhabitants 33 L.Q. Rev. (1971) 363, L. Oppenheim sets out the contents of Articles 48 and 49 of the Hague Regulations without going into the interpretations and ramifications.

 

            (b) Neither in L. Oppenheim, vol. II at 442-448 (ed. Sir H. Lauterpacht) is there a positive or negative reference to the introduction of new taxes: a summary deals with existing taxes, referring to Article 48 only, and no conclusion can therefore be drawn from there about the stand which would be taken in the matter at hand.

           

32. In dealing with the powers of the military government according to the distinction between "competence jurisdictionelle" and "competence reglomentative," Rousseau, in his book, Droit International Public (Paris 1953) 559, points out that after the occupation ceased, the courts of the occupied countries recognized the legitimacy of acts that had been based on considerations of the general public good (considerations d'interet general). In this connection, he mentions instances of taxation, as distinct from cases where the fiscal laws were changed arbitrarily. The concept raised here found a similar expression in the study of W.R. Bisschop, supra at 110, 141, which has already been mentioned. [p. 281]

 

            In connection with new taxes on property, which the Germans introduced in Belgium during the first World War (at 141) he says:

           

"It seems to me that, in principle, these ordinances were not ultra vires, but everything depends upon their execution and the extent to which they were required by the circumstances."

 

            It is not the imposition of a new tax which is illegal, but its imposition made without objective economic justification or exploitation for extraneous reasons, like the imposition of taxes on Belgians who had already left the country (tax of 16 January 1915).

            Rousseau (supra at 570) lays down the major principle that taxes should be collected, as they were before the occupation, but since the application of this principle is difficult (cf. Loening, supra vol. 5, 100) the occupying power may initiate an alternative tax:

           

            "il peut le percevoir sous forme de remplacement."

           

Therefore, in spite of the difference in terminology, this is similar to the view of Fauchille when he spoke of "equivalence," where he discussed the creation of a new tax embodying all the direct and indirect taxes.

 

33. In the book "Les Lois de la Guerre et de L'Occupation Militaire, "Charles-Lavauzelle (1956) 50, Capitaine Lubrano Lavadera dealt with the matter before us. He was of the opinion that the right to collect existing taxes is bound up in the obligation of the military government to ensure operation of the administrative agencies under its control.

            Incidentally, this definition of the obligation of the military government, as the writer puts it "assurer le fonctionnement des organes administratif" leads us by implication to the wording of the obligations under Article 43, although this provision of the Convention is not specifically mentioned in this connection. In any events, Article 48 manifests no connection as aforesaid between the definition of the obligation and the right to collect taxes, since Article 48 lacks any description of the reason for according this right.

            Lubrano-Lavadera adds further that the military government has the right to impose supplementary contributions for the needs of the army or administration of the territory, and the reference is clearly to Article 49, although this article is also not clearly mentioned in this connection.

           

34. Debbaseh, in his "L'Occupation Militaire"(Paris, 1962) 39, maintains that the occupying power [p. 282] has no right to enact legislation for new taxation, and he bases this view on "international law and the spirit of the Hague Regulations." ("Le droit international et l'esprit du Regliment de La Hag").

            Yet, he adds that Article 48 is among the provisions that were imprecisely drafted, because the prohibition of instituting new taxes arises merely indirectly, and from conclusions arrived at by negative inference: (in the words of the author: "indirectement et a contrario"). This thesis is similar to that which von Glahn expressed in his opinion submitted to this Court, that we may infer the absence of any other powers from the powers granted by the article as though the article were describing the powers exhaustively and exclusively.

            We now turn to a contrary viewpoint. Dr. C. Meurer in Die Voelkerrechtliche Stellung der von Feind besetzten Gebiete (Tuebigen, 1915) 76, a book published during the First World War, contends that Article 48 deals only with the authority to collect existing taxes. During the deliberations of the first Hague Conference it was repeatedly emphasized that the right to levy new regular taxes is not restricted by what is stated in Article 48. That power exists, and in the opinion of the author, arises from Article 49 which, provided he holds the necessary balance permits the imposition of "Steuer Kontributionen," which are contributions intended as taxation, a subject also presented in the works of K. Strupp & H. J. Schlochauer.

            A similar view is expressed by R. I. Miller The Law of War (Lexington, 1975) 92 who contends inter alia that:

           

"The funds with which to pay for requisitioned property can be secured by the occupant through 'contributions' levied on the local population. These contributions are actually taxes levied by the occupant."

 

            That is to say, with regard to specific circumstances which demand monetary resources, the writer expresses his contention that Article 49 is nothing other than a basis for the creation of new taxation.

           

35. The present Manual of the U.S. Army, The Law of Land Warfare (FM 27-10 Department of the Army, July 1956) 156, deals with "Public Finance" and in this regard refers first to the wording of Article 48. At para. 426 (ibid., at 157), in connection with changes of tax provisions, it states:

 

            "426. Changes in Taxes [p. 283]

           

a. When Existing Rules May be Disregarded. If, due to the flight or unwillingness of the local officials, it is impracticable to follow the rules of incidence and assessment in force, then the total amount of taxes to be paid may be allotted among the districts, towns, etc., and the local authorities required to collect it.

b. New Taxes. Unless required to do so by considerations of public order and safety, the occupant must not create new taxes."

 

From the negative expression used in para. 426(b) above, we may infer the positive, i.e., if considerations of "public order" and "safety" require it, new taxes may be created. The use of the term "public order and safety" indicates its sources, since it is patently clear that the wording of Article 43 was adopted and is viewed by the American Manual as the authority for the introduction of new taxes when the circumstances demand it. Thus, the term "public order" must be taken in its meaning in Article 43, and not literally, i.e., it is not the mistaken English translation of Article 43 that shall be used as a guide-line in prescribing the limits of rights, but rather the French original which refers to "la vie publique"-an expression wider and different from the English "public order," which expresses concern about public order only. As the British Criminal Court of Appeal of the Supervision Committee in Germany stated in Grahame v. Director of Prosecutions (1951) [22], at 232:

 

"L'ordre et la vie publique, (is) a phrase which refers to the whole social, commercial and economic life of the community."

 

            (See also Almakdassa [8] and E.H. Schwenk "Legislative Power of the Military Occupant under Article 43, Hague Regulations" 54 Yale L. Rev. (1944-45) 393).

            The reference in Article 43 to taxation reflects the conclusion already dealt with, that Article 48 is not exhaustive and does not cover all the aspects of the problem of taxation. Incidentally, the conclusion that in specific provisions of the Regulations, no complete answers to general problems likely to arise in occupied territory, are to be found (D. A. Graber, supra at 290) is expressed not only in the reference to the general provisions, which are contained in Article 43. When the question arose before the U.S. authorities after World War II, whether it was permissible to print and issue occupation currency in Italy, a matter not dealt with in the Regulations, it was deemed fit to rely on the general provision [p. 284] (Martens clause) of the preamble to the Hague Convention relating to the laws and customs of war on land, to the effect that:

"in cases not covered by the rules adopted by them, the inhabitants and the belligerents remain under the protection and governance of the principles of the laws of nation, derived from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience."

 

            Since the introduction of the currency did not conflict with the recognized practice of civilized peoples, the laws of humanity or the dictates of public conscience, they deemed it lawful to do so (Hearings on Occupation Currency before Senate, 80th Congress, 1st session (1947) 72, 84; see also W. Bishop, International Law. (Boston, 2nd ed., 1962) 821).

            To sum up, the question of the introduction of a new tax, in the view of the U. S. Army Manual, depends upon whether it is necessary for the purposes of "la vie publique" and "safety" in the occupied territory.

           

36. The question before us was discussed in K. Strupp and H. J. Schlochauer, supra vol. II. at 298 in an article by I. Seidl-Hohenveldern, that speaks for itself:

 

"If existing taxes as such are collected, it is not a matter of war contributions (Kriegs-kontribution); but frequently the military governor will levy a special tax instead (eine besondere Steuer), and that because the collection of regular taxes cannot be effected for technical reasons. Such imposition of taxation (Steuer Kontribution) is permissible even today under Article 43 (Remark: not Article 49 - M.S.) of the Hague Regulations, and the same applies to the increase of regular taxes, which is almost always required."

 

            That is to say that a special tax levied on the grounds of difficulty in implementing existing taxes, is permissible under Article 43, and is not necessarily to be regarded as a contribution under Article 49. As to increase in taxes, the writer sees it as a normal and acceptable action.

            The above serves to emphasize the variety of the range of interpretations in the matter before us. [p. 285]

           

            E. Castren, in his book The Present Law of War and Neutrality (Helsinki, 1954) 224 points out that there are those who hold the opinion that the removal of customs barriers between the occupied territory and the state of the occupying power (the home state) is illegal, and that the currency of the home state may not become legal tender in the occupied territory, and that no other action intended for the enrichment of the home state is permitted. However, he adds that Article 49 is the basis for the authority to impose supplementary taxes, when the needs of the army require it. His remarks in connection with supplementary taxes (at 241) follow:

           

"The most important money contributions are the real war taxes, which according to Article 49 of the Land War Regulations may be imposed to cover the costs of the occupation when the regular State taxes referred to in Article 48 do not suffice for this purpose. Additional taxes may be levied to meet the needs of the army of occupation. The origin and limitation of the right to collect taxes of this kind is, like that of requisition, military necessity, and some of the principles of and limitations on the right to requisition may be applied to them. Some writers have correctly observed that the right to levy war taxes involves a dangerous inroad upon the protection of private property." (Emphasis in the original - M.S.)

 

38. Verdross, supra at 383 mentions the government's right to levy regular taxes, customs duties and fees, as well as the right to impose extraordinary contributions in the form of money or requisition of goods or services. He does not mention the levy of new taxes, and it may be assumed, in view of the context that he does not support the existence of such a right, since according to what he says he sees the rules he himself has set out as an exhaustive description of the limitations of the laws of war.

 

39. (a) The 1958 edition of the British Military Manual does not unequivocally prohibit the introduction of new taxes but, on the contrary, it indicates that circumstances permitting it may arise. Indeed, it presents this as an extraordinary measure only, but the inference is clear. In regard to our matter, the Manual states (at 146):

 

"529. Unless required to do so by considerations of public order and safety, the Occupant must not create [p. 286] new taxes, as this is the right of the legitimate Sovereign and temporary possession does not confer it (1). However, as will be seen, he may raise money by way of contributions (2).

(l) Thus in 1870, the German occupation authorities in France suspended the tobacco monopoly.

            (2) See para. 605 and Hague Rules 49."

           

            The Army Manual mentioned above, the 1958 version of which was edited by Sir. H. Lauterpacht in 1958 and from which the above extract was cited, deals with all its aspects of taxation and not merely with new taxes (supra at 146, paras. 527-529). The basis for his conclusions regarding the rules applicable to taxation rests exclusively on the Hague Regulations. The implication is that the above view about new taxes contained therein must also correspond to the thesis guiding the editor of the Manual regarding the legal ramifications of Articles 48 and 49 of the Hague Regulations. In other words, since the rules of taxation are not derived from a separate and independent source, but from Article 48, it therefore follows logically that the above quoted passage, in the view of the author, agrees with the rules of what is permitted and prohibited as expressed in the Hague Regulations, Moreover. although not explicitly stated, it follows from the wording, i.e., from the reference to "public order and safety," that Article 43 is the basis for the exception permitting the introduction of new taxes. Thus, the approach taken by the British Manual is the same as that expressed, for example, by E. H. Feilchenfeld, and by the U.S. Army Manual of 1956.

           

40. The present question was also discussed by M. Greenspan The Modern Law of Land Warfare (Berkeley, 1959), who argues in his introduction to this subject that the Military Government does not have the right to introduce new taxes, since that is the prerogative of the sovereign. His view is based on his book, ibid. at 228, on the British Manual and on Rolin, Le Droit Moderne de la Guerre, but he adds that:

 

"Hyde, III, 1887, points out that while a statement to the effect that the occupant could exercise such powers was contained in the United States Rules of Land Warfare of 1934 (Rule 295) the statement was not repeated in the 1949 edition of those rules. However, the 1956 edition (The Law of Land Warfare) now states: 'Unless [p. 287] required to do so by considerations of public order and safety, the occupant must not create new taxes.' "

 

In a footnote, M. Greenspan at 229, note 54, adds:

 

"Apparently the manner in which customs are levied and the method of collection might be varied, provided the incidence of the dues is not materially altered, e.g., ad valorem dues might be substituted for specific dues and categories might be regrouped. See also on customs duties, Hyde, III, 1887. Feilchenfeld, op. cit. p. 49, states that Art. 48, Hague Regs. would not seem to exclude taxation increases, 'particularly such changes as have been made desirable through war conditions, or, in the case of an extended occupation, general changes in economic conditions.' Further, he appears to be of the opinion that the occupant may introduce new taxes and customs duties in cases where they are necessary to safeguard the welfare of the territory and therefore maintain public order. Cf. U.S. Law 426b; Br. M.M.L., pt. III, par. 529."

 

            Thus, M. Greenspan first presents an apparently absolute view concerning the imposition of new taxes, which he bases on the British Manual (which does not contain any absolute prohibition, as we have seen) and on Rolin, but in conjunction with this he presents a different view of his own, i.e., that expressed in the U.S. Army Manual and in E. H. Feilchenfeld, which we have already dealt with at length above.

            It is clear from this that M. Greenspan does not purport to make reference to a firmly recognized thesis of customary international law. The picture we once again obtain, which we have encountered throughout the course of our analysis of the literature, is that there are at least two principal schools of thought in the interpretation of the rules of what is permitted and what is prohibited, one permitting the introduction of new taxes, including new customs duties when it is justified - either expressly or by implication, as explained - by considerations based on the obligations of the military government as set out in Article 43 or by way of interpretation of Article 49, and the other rejecting the above .

           

41. Prof. J. Stone in his Legal Controls of International Conflict (Florida, 1959) 713, takes the usual approach that the collection of existing taxes rests on Article 48. [p. 288] In his opinion, nothing in Article 48 prohibits an increase in taxes. He emphasizes that he is aware that there are other views, but he adopts the approach of E. H. Feilchenfeld, which will be dealt with later. The principal thing, is that in his opinion it is also possible to impose new taxes and customs duties. (At 712-713), he says:

 

"It is arguable that even new taxes and duties may be warranted where (due to changes in yield) the sovereign himself would have to resort to them."

 

            This shows that he holds that new taxes may be introduced, if there arise circumstances which would also have provoked the previous government to introduce a new tax. To remove any doubt, he observes that the criticism of the introduction of a new tax that the Germans imposed on the Belgians, who had left Belgium in the first World War (decuple tax) was not levelled because it was a new tax, but because of the reason it was levied, because it was an extra-territorial tax and because there was no substantial justification for it.

            When we turn to the question of how the preceding government would have acted, it is clear that it will be mere supposition, since there is no possibility or logic in asking the theoretical opinion of government authorities that have been ousted, if they still exist, how they would have behaved under the circumstances. Their negative response is foreseeable, if they would respond at all to the enemy's request, and it is extremely doubtful that this reaction or lack thereof would add or detract anything.

           

            Prof. J. Stone also refers to the use of the authority to levy contributions as a means of introducing new taxes. He holds that contributions can have two legal grounds (at 713), the first:

           

" 'extraordinary' taxation to meet the needs of administration."

           

            Secondly, as a contribution for the needs of the occupying army. The first ground, he adds, is taken by the British as the only legal basis for creating a new tax. The second reflects the views of those legal scholars who regard the authority to impose contributions as an opening for creating a new tax, that is, according to this view the possible basis for creating a new tax is not Article 43, but Article 49. These conclusions from Stone's observations indicate once again the variegated nature of the approaches to the existence of a lawful possibility of imposing new taxation.

           

42. Prof. G. Schwarzenberger, supra vol. 2, holds that the provisions on taxation are a consequence of the leading rule that the military government [p. 289] must respect private property. Hence, his opinion that taxation must remain, as far as possible, within the limits that existed before the military government was established. Supplementary monetary contributions may be raised only for the needs of the army, i.e., for the purposes of the occupying military forces or for maintaining the administration in the territory (ibid., p. 246). In summary, Schwarzenberger raised two restrictions. The first, to respect the existing situation as far as possible, that is a wording similar to the limitations set forth in Articles 43 and 48, which involves an obligation that must be upheld "unless absolutely prevented," and second, the purposes for which the funds may be used are only those defined above, which derive from Articles 48 and 49. In essence, the writer does not advance a thesis of an outright prohibition or a categorical restriction of changing the existing tax system.

 

43. E. H. Feilchenfeld devoted his book to the economic aspects of government of occupied territory. In summary form he summarizes his approach to the matter of taxation as follows:

 

            (a) The needs of the army occupying the territory should be defrayed by imposing contributions but not by drawing on regular taxation.

           

            (b) A contribution may also serve to defray the requirements of the territory and its inhabitants, but this is not the only way, and money collected through existing taxes designed to serve the state may also be used for such purposes.

           

            (c) The military government has the right to levy taxes for its own purposes and call them contributions, as he says at 49:

           

"The occupant is quite free to levy taxes for his own benefit and to call them contributions. Hyde observes that a military occupant 'enjoys large freedom in the mode of raising revenues to defray expenses of the administration, as well as in the application of funds acquired for that purpose.' "

 

            (d) It is permitted to increase the rates of existing taxes.

           

            With regard to Article 48 (apparently particularly to the phrase "as far as possible" therein), E. H. Feilchenfeld writes:

 

"The provision would not seem to exclude, as has been asserted, taxation increases, particularly such changes as have been made desirable through war conditions or [p. 290] in the case of an extended occupation, general changes in economic conditions." (Emphasis added - M. S.)

           

            (e) Regarding new taxes, E. H. Feilchenfeld is of the opinion, ibid. 49:

           

"It is not clear that the occupant may introduce new taxes and customs duties. There have been several instances of such practice. Article 48 does not authorize them expressly but they may be justifiable in individual cases under the occupant's power to restore and ensure public order. The revenue laws of an occupied country may provide for inadequate revenue; the amount of revenue produced by any one tax may change materially in wartime; new needs may call for new revenue; if the occupation lasts through several years the lawful sovereign would, in the normal course of events, have found it necessary to modify tax legislation. A complete disregard of these realities may well interfere with the welfare of the country and ultimately with 'public order and safety' as understood in Article 43." (Emphasis added - M.S.)

 

            This shows that there may be justification for introducing a new tax, if there are special conditions, like those arising from substantial changes in the economic conditions or the changing requirements that accompany the extended existence of a military government. It can also be understood from what the writer says that the absence in Article 48 of express permission to introduce a new tax need not be used as a prevention for doing so, when circumstances obliging it exist. The obligation to follow the basic intention of Article 43 will prevail, since it ranks preferable to the significance attributable to the absence in Article 48 of any reference to the introduction of new taxation.

            To demonstrate his view that there is express occasion for introducing a new tax under certain circumstances, examples of which have been quoted above by the writer, E. H. Feilchenfeld refers to the criticism levelled against a new tax in the form of forced levy, which was even penal in character, when it was introduced in the First World War during the German occupation of Belgium. He expresses his opinion in this connection, which view was also adopted by Prof. J. Stone, that it was not the novelty of the tax that disqualified it. He says in his book (at 50):

           

"203. During 1914-18 Germany imposed a 'decuple tax' [p. 291] on all Belgians who had voluntarily left their domicile unless they returned by March 1, 1915. This imposition has been severely attacked. If it was unlawful, its illegality would flow from more serious reasons than that it was a 'new' tax. This measure evoked vigorous protests and complaints. It became, on May 1, 1916, the object of a decision of the Belgian Court of Cassation, at that time functioning in France. In its decision the court refused to recognize the decuple tax. One does not have to look at the amount of the tax, however, to find sufficient grounds for this decision in the body of Belgian case law. The Belgian courts throughout denied the right of Germany to interfere with 'ordinary' legislation and, of course, were even more opposed to extraterritorial effects of such measures.

Actually, a technical answer may turn on the question of whether the decuple tax should be regarded as a tax or as war contribution. If it was a regular tax, that is, a tax collected for the benefit of the Belgian State, then its character is very dubious indeed. If, however, it was a war contribution, that is, a levy for the benefit of the occupying army, then it may have been justified as a contribution in so far as it affected merely assets situated in Belgium. It is true that even then it was clearly not in conformity with the modes of levying and imposition prevailing in Belgium; but the provision to this effect in the Hague Regulations is not mandatory; it only stipulates that the occupant shall follow a certain procedure if possible. Its possible extraterritorial effect raises, of course, additional and different questions." (Emphasis added - M.S.)

           

            To sum up, E. H. Feilchenfeld is of the opinion that the Regulations do not prohibit the introduction of a new tax.

           

            44. In chapter 12 of his book, The Occupation of Enemy Territory (supra at 150 ff), [p. 292] Prof. G. von Glahn discusses the question of taxation, basing his conclusions on Article 48 of the Hague Regulations. Regarding the matter in question he says:

           

"While the occupant is legally empowered to collect existing taxes, he is not permitted to create new and additional taxes, either for his own benefit or for that of the occupied territory (6), if additional revenue is needed, it has to be collected in some other form, such as through monetary contributions. The obvious reason for the legal inability of the occupant to institute new taxes is that such a power is vested exclusively in the absent legitimate sovereign and not in the temporary belligerent occupant."

 

            The author's conclusion is this a result of the vesting of the power to levy regular taxes in the sovereign, as distinct from the military power, which is temporarily administering the territory. The possible implications of this point of view have already been examined above, but attention should be paid to the fact that von Glahn saw fit to qualify the absoluteness of this conclusion by a note which he attached to his above quotation. The following is footnote (6) to his remarks on the levying of new taxes quoted above (at 159).

           

"(6) British Manual, para. 372; Bustamente y Sirven, op. cit., p. 373; Fauchille, II, 263; on the other hand, both JAGS No. 11, pp. 196-197 and Land Warfare, para. 426 (a-b), imply that an occupant could impose new taxes and also would not be bound, under certain conditions, by the previously existing rules of assessment and incidence." (Emphasis added - M.S.)

 

            The reliance placed on the British Manual in this footnote does not seem to be very precise, since the 1958 edition of the Manual does not prohibit the imposition of new taxes, but the reverse, since para. 529 thereof implies that when required for reasons of "public order and safety," such imposition is permissible.

            In any event, the writer's review embraces the two opposite prevailing approaches to the matter. [p. 293]

           

            As for customs duties, the writer points to the existence of greater flexibility and freedom of action. He says (at 154):

           

"The right of an occupant to modify tax laws is fairly limited, as shown in the preceding section, but no real restrictions appear to exist with respect to the collection and rates of customs duties in the occupied territory, unless such duties would be held to be included in the 'dues' mentioned in Article 48 of the Hague Regulations of 1907. The current interpretation of the question seems to be that customs duties, under the conditions described, rest on a dual basis: on the rights of the occupant based on the Hague Regulations, and on such direct and lawful orders as may be issued by the authorities of the occupying state." (Emphasis added - M.S.)

 

            The side-by-side presentation of the rules derived from the Hague Regulations and the orders of the state responsible for the military government cited at the end of the above quoted passage is an improper combination of unlike situations and seems to by-pass the matter. Von Glahn seems to be referring to Presidential directives in the Spanish-American War (see supra at 54) regarding customs duties that were changed by the U. S. on the spot; thus new duties were imposed on imports from the U.S. immediately when Puerto Rico was captured. However, military government regulations are valid and legal in the event that they are based on the laws of war, or to be more exact, in the event they are not restricted by the principles on which these laws are based, or by the specific provisions contained therein. As Schwarzenberger, supra vol. II at 191, puts it in relation to the nature, force and structure of the laws of war:

           

"The scope of the legitimate powers of a belligerent occupant is limited only by such restraints as are imposed by international law."

 

            The domestic laws and provisions of a state establishing military government have no independent status in complementing, as it were, the laws of war, as might be inferred from von Glahn. Hence, the only pertinent question here is whether the laws of war created an opening for the introduction of new customs duties. The answer would be in the affirmative if Article 43 were deemed a basis for new fiscal legislation, when required by circumstances. In any case there is no basis for any distinction - from the viewpoint of the Hague Regulations - between customs duties and taxes. Von Glahn has also not explained the source for his approach, which distinguishes between one piece of fiscal legislation and another. [p. 294] If a prohibition proceeds from Article 48, as he now believes, that would apply both to taxes and dues, and if no such prohibition exists, as would emerge from views of other authors, according to which one can deduce from Article 48 only the regulation of the specific problem it deals with (i.e., all aspects of the collection of existing taxes) and that it does not prevent the application when necessary of Article 43 for enacting new or amended fiscal legislation - then that opinion would apply equally to taxes, dues and tolls. It is superfluous to add that edicts proclaimed in the home country of the military government, whether presidential or otherwise, are immaterial to the distinction between "taxes" and "customs (dues)."

            Ultimately, von Glahn's views on new customs duties, as he presents them in his book, may support by implication the thesis that circumstances may arise which permit the military government to enact new customs legislation or to amend the existing customs legislation.

            The difference, however, in approach to direct tax, on the one hand, and to customs duties (indirect taxes) on the other, may have another effect on the subject of our present concern. Indirect taxes, not only customs dues, are not merely an auxiliary means of augmenting the treasury of the government, but frequently serve as a means of economic regulation and balance: they have repercussions on the flow of imports and exports, and affect supply and demand, and are thus an important and essential constituent of any process of organizing the economy and its proper operation. The latter functions are part of the tasks of those entrusted to ensure public life and accordingly the subject of indirect taxes goes beyond the mere question of arranging collection per se and for this reason calls for much wider freedom of action than that applying to the collecting of existing taxes, which largely serve the budgetary requirements of the territory. The incomplete collection of direct taxes from a population whose average income is not high may entail a budgetary deficit that will need to be made up by drawing upon the financial resources of the home country; however, the lack of proper application of indirect taxes (including customs duties) because of abolishment, variation, addition and the like, may also affect, in a significant manner, the economy of the territory and lead to unemployment, shortages, flooded markets and other like negative phenomena. Accordingly, control over indirect taxation by adjustment to ever-changing requirements is, frequently a not unhappy necessity.

 

45. Prof. G. von Glahn also deals with taxation in military occupied territory in a recent book Law Among Nations (1981) where he writes (p. 686):

 

"It has been asserted by a few commentators that an occupant may impose new taxes in occupied enemy territory, and the Israeli authorities in the West Bank area did introduce an 8 per cent 'value-added' tax in 1976 [p. 295] (such a tax had been in effect in Israel proper for several months). Imposition of the tax resulted in repeated business strikes called by the mayors of a majority of the communities on the West Bank. Neither Geneva-IV nor PR-I mention the subject of new taxes, but the American Law of Land Warfare states (par. 426-b) that 'unless required to do so by considerations of public order and safety, the occupant must not create new taxes.' That view appears to be shared by a majority of governments and of commentators."

 

            The main conclusions of this passage are, first, that the author emphasizes that the Fourth Geneva Convention and the Supplementary Geneva Protocol of 1977 contain no reference at all to the subject of the imposition of new taxes, but in view of what follows, it is particularly interesting that the author does not propound the view that Article 48 of the Hague Regulations creates an absolute prohibition on the imposition of new taxes. Secondly, the author refers to the American Military Manual now in force, which indicates that new taxes are not to be imposed unless considerations of "public order and safety" require it. That means that if such considerations are present, the imposition of a new tax is permissible. Moreover, Prof. von Glahn adds that this is the view held by a majority of countries, and is shared by most commentators. Thirdly, at the beginning of the passage he points out that only few commentators think that imposition of a new tax is permitted. In view of the latter part of the passage according to which considerations of public order and safety allow the imposition of new taxes, and according to which most commentators support this view, one can but understand that the first part of the passage is directed towards the view (if such indeed exists) that would permit imposition of a new tax under any circumstances, even when military government is not required to do so by considerations of "public order and safety."

           

"required to do so by considerations of public order and safety (at 686)."

           

            Although the author linked his reference to the introduction of value added tax in Judea and Samaria to this last view, he gives no details as to why and on what basis he did not connect the matter to circumstances - for public order (la vie publique) - which necessitated the introduction of the tax, a view currently advocated by the majority of states and commentators. To great sorrow, the only conclusion to be drawn as supported by the footnotes of his book, is that the author on this matter took no more trouble [p. 296] than examining certain newspaper reports nor did he examine the considerations and explanations of the government authorities in Judea and Samaria.

           

            It is noteworthy, as mentioned, that there is nothing in his book of 1981 to support the contention that it is prohibited to impose a new tax in any and all circumstances.

           

46. (a). The Petitioners to the High Court of Justice in H. C. 493/81 submitted to the Court the written opinion of Prof. G. von Glahn. The main points he expresses therein are: the financial resources needed for administration of the territory are usually covered by the taxes and contributions collected in the territory. There have been precedents where the military government also imposed new taxes, in which cases the question arose as to whether this action was permissible according to international law.

 

            Later in the opinion, he examines this Court's rulings regarding the applicability of the Hague Regulations to the occupied territories, the meaning of Article 43 and its implications on the legislative power of the occupant, a subject to which we shall return.

            Prof. von Glahn analyzes Article 48 of the Hague Regulations, and on the central issue before us, has this to say in the opinion:

 

"I am not unmindful that Land Warfare, par. 426-b implies that new taxes may be created by the occupant under certain conditions, cited by Von Glahn, 150:

 

'426-b. New Taxes. Unless required to do so by considerations of public order and safety, the occupant must not create new taxes.'

 

"The British War Office Manual of Military Law (1914 edition), par. 372, repeated in the 1958 edition, par. 529, duplicates the American manual par.

426-b.

            "However, this paragraph in the American and British manuals is not a statement taken from a valid treaty or from customary law but an interpretation of the U.S. Department of War, not binding on any court or tribunal .

           

            "I fail to see what considerations of public order and safety are relevant to the creation of new taxes. If unstable [p. 297] conditions in the occupied area required expenditure for order and safety above revenues received from existing taxation, such funds could be raised either by increasing tax rates or by levying money contributions under the provisions of Articles 49 and 51 of the Regulations. It is regrettable that par. 426-b was inserted in Land Warfare at all, for if it is interpreted by an occupant as a given permission to create new taxation, it could easily lead to the very abuses that were corrected by the binding provisions of Article 48 of the Regulations. But a few writers have ventured to defend an alleged right of an occupant to impose (create) new taxes in occupied territory. But in modern times the consensus of a handful of most writers on the subject is in favour of a denial to the occupant of creating new taxes."

           

            Thus, the opinion shows that Prof. G. von Glahn dissociates himself from the wording of the rules of what is permitted formulated in the U.S. and British Manuals, and as we have also seen from his book, which was published in 1981. He claims that the approval which is apparent in the U.S. Army Manual could form the basis for abuse of the power to levy taxes. He says that prevailing modern opinion rejects the power to impose new taxes, but he does not go into detail on what he bases his assumption of the purported existence of consensus on this matter.

           

            Prof. von Glahn refers to the argument that prolonged military government weakens the binding force of the strict observance of Article 43, and the principle of his summary follows:

           

            "There exists a considerable and somewhat inexplicable confusion among legal writers concerning the influence of a prolonged duration on a belligerent occupation. The problems center on an uncalled-for intermingling of the occupant's powers relative to legislation and to taxation. The provisions of Article 43 of the Regulations clearly are not graven on stone; they permit changes in legislation by the occupant subject to the limitation that such changes are limited to the restoration and ensuring [p. 298] of public order and 'civil life.' It is thus conceivable that in the course of time an occupant may, lawfully, introduce new legislation, all designed to enable him to fulfill his responsibilities under Article 43. Such a development can be anticipated particularly in an extended occupation and may come in a multitude of aspects of the social and economic life of the inhabitants. (See also Schwenk, op. cit., 399-401, for a set of cogent comments on the legality of changes in legislation during an extended occupation.) On the other hand, however, when the question of taxation per se is considered, Article 43 must be viewed as retreating into the background and the provisions of Article 48 become the governing rule, coupled with the related provisions of Articles 49-51. Article 48, however, is possessed of an inflexible point of view concerning the imposition of taxes; nowhere does it contain a permissive provision for the introduction of new taxes nor does it contain any reference to the length of an occupation. 'The obvious reason for the legal inability of the occupant to institute new taxes is that such power is vested exclusively in the absent legitimate sovereign and not in the temporary belligerent occupant.' (Von Glahn, 151). And 'temporary' has never been defined in a binding legal instrument dealing with the law of belligerent occupation."

 

            On the divergence from the provisions of the Regulations because of the economic link between Israel and the Occupied Territories, which has created over the years a kind of single integrated entity, and on the argument that the link justifies military legislation introducing new taxes which equalize the situation in the Territories with that in Israel, von Glahn's opinion is:

           

"It cannot be denied, of course, that extensive economic relations have developed between Israel and the Gaza Strip, both in the form of trade (exports and imports) and the utilization of Palestinian labour in Israel, derived from the Gaza Strip. On the other hand, exaggerations of importance of the trade have appeared, [p. 299] and inasmuch as the Gaza Strip has few economic resources outside of manpower, the viewing of Israel and the Gaza Strip as an economic totality does not appear too close to reality.

            "The absence of specific authority to create new taxation by a belligerent occupant represents a restriction based on customary international law. This provision is clear and unequivocal.

            "It is almost axiomatic that in all cases of occupation, economic changes and in some instances material changes - have taken place after the inception of the places; good examples are supplied by the Allied occupation after World War II, by the German occupation of both World Wars, and by the American of Japan after 1945. If one were to allow the changes in question to set aside in whole or in part, the limitations imposed on an occupant by the Hague Regulations Article 48 would in effect become meaningless.

            "On the other hand, I understand that it has been argued that, the primary responsibility of an occupant being the 'civil life' of the inhabitants under the interpretation of Article 43 of the Regulations, even new taxes could be created by the occupant, if this act would enable him to better fulfill his lawful responsibilities (see Shefi, op. cit., 290). In other words, so the argument runs, if to a certain extent occupant and occupied territory develop into one extended economy, subject to one set of economic laws, then, if a new tax were needed in the occupied part of that economy, Article 43 allegedly would override Article 48 of the Regulations.

            "While the growth of economic relations between Israel and the Gaza Strip is undeniable, and while an Israeli intention to promote the 'civil life' of the inhabitants of the Strip is in accordance with the intent of Article 43 [p. 300] of the Regulations, Article 48 of those same Regulations poses an instrumentable obstacle to any claimed attempt to implement Article 43 through the imposition of a new tax in the occupied territory.

            "The occupant's avowed reason for the VAT tax was not a desire to increase revenue for the use of the administration of the Gaza Strip, but, it has been claimed, a fear on the part of the military authorities that economic relations between the Gaza Strip and Israel would be affected adversely if taxes between the two areas were not equalized. Furthermore, it was alleged, exports from the Strip were to be encouraged by exempting them from the application of the VAT, and, secondarily the imposition of the tax would enable collection in full of income taxes (Note: this probably means VAT-M.S.) in Israel, for the tax would follow the production process across the border into Israel.

            "The last-mentioned claim in support of the imposition of a VAT cannot be supported from the point of view of International Law, because the claimed result is for the benefit of Israel rather than of the occupied area. The other claims in support of a VAT fail, under International Law, because they attempt to support what well may be legitimate endeavours under Article 43 of the Regulations by resort to the unauthorised new tax in violation of Article 48."

           

The concluding summary is that:

 

"a belligerent does not possess the legal power to introduce new taxes in occupied territory....the restoration and maintenance of order (and of the civil life of the inhabitants) cannot be assisted by an introduction of new taxes, in view of the provisions of Article 48 of the Regulations. The prohibition on the imposition of new taxes in occupied territory [p. 301] is divorced totally from questions of legal sovereignty over the occupied territory before its occupation, from the length of the belligerent occupation, and from any growth in economic ties between the occupied area and the homeland of the occupant. The principles laid down in the 1907 Regulations, accepted as indications of prevailing customary international law, override the factors mentioned and bar the occupying Power from levying new taxes in occupied territory, for such is beyond the competence of the occupant.

            "Accordingly, the imposition of 'value added' tax in the Gaza area by the Israeli military authorities is not legal and cannot be supported, or warranted by, from any point of view of the Hague Regulations."

           

            (b) As has already been indicated, Prof. G. von Glahn in his opinion abandons, by implication, the thesis on the problem of taxation he presented in his books, of which relevant passages have been cited above. He also seeks to show that statements in the U.S. Army Manual and the British Army Manual have no foundation in customary international law. Whilst in connection with his book in 1957 it may still be argued that it merely refers to a directive of the U. S. Army Manual and no more, without taking any position on whether the directive has a firm basis in customary international law, it seems more difficult to accept this argument upon comparing it with what he has to say in his later book Law Among Nations (1981), where he explicitly observes that the directive in the U.S. Army Manual enabling the imposition of new taxes if "required" for "consideration of public order and safety" is the accepted doctrine of the majority of governments and commentators. Furthermore, at the beginning of the relevant passage in his book (ibid.), as quoted above, appears the statement that the opinion of a number of commentators is that the military government has the power to impose new taxes under certain circumstances. The view of most commentators and governments is different, from the point of view of legal standing, and certainly from the point of view of weight, from the quotation of the U. S. Army Manual alone, although regarding what is said therein, it is difficult to accept the thesis that it is a new creation and is merely the result of interpretation by the Defence Dept. of the U. S., and that it is independent and divorced from the law and without reference to customary law.

 

            I agree that caution is always needed in reaching conclusions as to what falls within the framework of customary international law, especially when the view of any particular learned commentator, does not necessarily reflect [p. 302] the opinion held by the overwhelming majority. As C. G. Fenwick, International Law (New York, 3rd ed., 1948) 74 says:

           

"The works of great writers must, however, be used with the caution that they have often failed to distinguish sharply enough between rules that have been generally adopted by the nations as a body and those to which two or more nations, their own included, have given their consent. Moreover, many writers have been inclined to adopt the role of advocates in the endeavor to show that the practice of their own country was the correct rule of law on controversial questions."

 

            However, notwithstanding all the proper caution in relying on interpretation as aforesaid, the views expressed by experts may be used as admissible, valid and even convincing evidence of the existence of a custom or the absence of a prohibition under customary law. Justice Gray therefore said in the well-known judgment of "The Paquete Habana" (1900) [25] 700, in reference to the significance of the articles of the analysts and legal experts in the field of international law, that:

 

"Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."

 

            It is superfluous to add that there is particular evidential weight to the practice of states (C. G. Fenwick, supra at 73, 76) especially of those among them who possess status in the enlightened world. Therefore, it is difficult to deny the force and value of the U. S. Army Manual and the British Army Manual, and cancel them with the stroke of a pen, as it were.

            If von Glahn had satisfied himself with asserting that in view of the conflicting opinions in support of either view, no undue status is to be accorded to any of them in particular, and that one must conclude that no firm rule binding in international law has emerged on the subject before us, it would have been easier to accept his opinion. However, his rejection of the interpretation of the Army Manuals of two states that possess special standing in regard to the shaping and formation of the laws of war, and his disavowal of what he had determined in his own book to be the views of most states and analysts, arouses, in the nature of things, doubts and surprise. In any event, Prof. G. von Glahn's change of approach has not been satisfactorily explained. [p. 303]

           

            The other assumptions of the learned writer in his said opinion raise difficulties, which are no less serious. Prof. G. von Glahn points out, in regard to the U. S. Army Manual. which says

           

"considerations of public order and safety are relevant to the creation of new taxes."

 

that he cannot understand what are the considerations of public order and safety that can be relevant to the institution of new taxes. He says, that if the situation in the territory is unstable, further resources are required to ensure order and safety, and if they cannot be covered by existing taxation, then, he says, it is permissible to raise the tax rate or to impose forced contributions. He seems to have ignored the significance of "public order and safety" and reverted to the literal English meaning of the term (in which the emphasis is on the safety of the military government) and ignored in this passage of his opinion the French original which the said translation attempts to reflect. What is involved is "l'ordre et la vie publique." and von Glahn himself saw fit to refer to the meaning of the term in an earlier passage of his opinion where he indicates that it means "ensuring" (in English, "ensure" - in French, "assurer") the civil life of the residents of the territory (page 6 of the opinion). That means, according to the clarification in the judgment of Grahame [22], as mentioned above:

 

"L'ordre et la vie publique" (is) a phrase which refers to the whole social, commercial and economic life of the community. (Emphasis added- M. S.)

Acting President (as he then was) Sussman explained in Almakdassa [8] at 582:

 

"The scholars of international law did not overlook the fact that where the military occupation is very prolonged, until peace is achieved, the occupant's duty towards the civil population may even oblige it to amend laws, since the needs of society change in the course of time and the law must respond to those changing needs.... Leurquin says regarding the German conquest of Belgium during the First World War....

            "When the occupation is prolonged and when owing to the war the economic and social position of the occupied country undergoes profound changes, it is perfectly evident [p. 304] that new legislative measures are essential sooner or later."

           

            (The passage from Leurquin is cited from his "The German Occupation in Belgium and Article 43 of the Hague Convention" - M.S.). "Life does not stand still, and no government, whether an occupier or not, can fulfil its duty, toward the population as it should if it freezes the laws and avoids changing them to meet the needs of the times."

           

            (See also H. C. 202/81 [16]; Professor Y. Dinstein, The Power of Legislation in the Occupied Territories; E. Nathan The Power of Supervision of the High Court of Justice over Military Government; Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem 1982)109 149).

            The decision to impose taxes need not only arise from the needs of safety as such, as is implied in the opinion of Prof. G. von Glahn, but may also ensue from the aim to ensure (assurer) the economic needs and well-being of the population and, for example, to provide essential fiscal arrangements required for maintaining the balance of the local economy and avoiding serious harm to the livelihood of the inhabitants of the area. Levying contributions or increasing the rates of existing taxes may be entirely impractical for achieving these aims where the economy has changed in a substantial manner since the inception of the military government (see the tables appearing in Military Government, (ibid.) p. 442). For this reason, apparently, Prof. G. von Glahn also regarded customs duties in military government as a field which should be exempted from the usual restrictions that he imposes upon the imposition of new taxes (see his The Occupation of Enemy Territory, supra at 154, cited above). Here arise difficulties; as has already been noted, this distinction between customs duties and taxes is not reconcilable with his interpretation of Article 48, since all the restrictive meaning he attaches to the article applies equally to both taxes and customs duties, as shown by the wording of Article 48 as analysed above. If Prof.

G. von Glahn's hypothesis, with which we have already dealt, were correct, i.e., that Article 48 imposes an absolute prohibition on any new tax, one cannot understand whence he derives the view that one may act much more liberally with regard to customs duties, a view which is also accepted by most analysts. It is superfluous to repeat that the regulatory and balancing effect on the economy from the exercise of powers in relation to all indirect taxes is similar, in its consequences in economic implication to the regulatory and balancing effect arising from changes in customs duties, since these are nothing other than a form of indirect tax. [p. 305]

 

            That is, the wonder expressed by Prof. G. von Glahn about the possible connection between public order and safety and the imposition of a new tax is incomprehensible if we bear in mind that we are dealing with the assurance of "la vie publique" in its original French meaning, and not necessarily with the safety of the forces of the military government.

           

            (c) We saw above that Prof. G. von Glahn takes the stand that the provisions in the British and American Manuals are without any foundation in customary international law. However, the professional literature, some of which was reviewed above, does not support this extreme hypothesis. There are, we have seen, a variety of opinions on both sides' readings, but a thesis which propounds that the Manuals are inconsistent with customary international law - i.e., as if there is a firm customary rule which is clearly in conflict with them - is a complete novelty in the opinion, and has no basis even in his book of 1981, wherein he saw fit to present the U. S. Manual as expressing the view of a majority of states and commentators. It would have been proper for the opinion presented to this Court to have attempted to explain the reason for the digression from the former opinion, and the basis for it.

            The main thing is that a review of the literature does not support the argument of Prof. G. von Glahn that a consensus purportedly exists denying the right to introduce a new tax. The reverse is the case; there is a clear school of thought among the experts to the effect that the needs of "la vie publique," may, perforce, call for changes in tax law. (K. Strupp and H. J. Schlochauer, J. Stone, E. H. Feilchenfeld and others, as cited above).

            The view that the provisions of Article 43 in all questions of taxation yield to the purportedly absolute prohibition in Article 48 is also a novel one. Here, one must remember that we are not inquiring into whether such a view can be presented as de lege ferenda, but whether there is any basis to accord it the benefit of having the status of an accepted customary rule of international law which reflects general practice recognized as law. All that has been said above - prior to the examination of von Glahn's opinion - including the review of the wording of the Regulations, their background and development, and a representative review of the professional literature, is diametrically opposed to the contention that a customary rule has evolved from which an absolute prohibition to imposing tax may be inferred from Article 48, or that the rules implied from the article, which deviate from what it expressly provides, as to the extent of the authority vested under Article 43 are to be preferred. (It is enough to recall here, for example, the observations of Prof. J. Stone and E. H. Feilchenfeld cited above). In this connection, Prof. G. von Glahn emphasizes that Article 48 does not contain "a permissive provision for the introduction of new taxes," but we have already explained that, in essence, the article was not designed by its drafters to create a permissive provision, but rather one that is restrictive, having implications on the subject of the collection of existing taxes with which it deals. Here, we need only refer back to the reservations of Beernaert during the discussions on the drafting of the Regulations and to the remarks of Prof. G. Schwartzenberger (see para. 44) set out [p. 306] in para. 42 of this judgment. The thesis that Article 48 is an insurmountable barrier to applying Article 43 to the problem of introducing new tax conflicts with the opinions of many writers, as I have said, including E. H. Feilchenfeld, J. Stone, G. Schwartzenberger, and H. Lauterpacht (the author of the British Manual).

 

            (d) In discussing the necessity for introducing the value added tax, G. von Glahn refers as aforesaid to the argument that the new tax is an essential consequence of economic developments. Unfortunately, the facts regarding the nature of the economic ties between the two systems - that of Israel and that of the Territories - were insufficiently set out as required by the subject dealt with in the opinion, and we shall return to this matter later.

           

47. In brief, the professional literature, including the books of von Glahn, but excluding his opinion as presented to this Court - cannot serve as a basis for the conclusion that there is a recognized customary rule prohibiting the introduction of a new tax under any circumstances - that is, even when it is required according to criteria embodied in Article 43. I see no reason to relate once again here to the theoretical proposition that links additional taxation to the provisions of Article 49, since it was not argued that it is this article which served as the legal basis, in the case before us, for the introduction of the value added tax. This view is recalled simply for the purpose of completing the picture, that is with regard to the categorical argument of G. von Glahn in his opinion that there is a "clear and unequivocal" prohibition to introducing a new tax under any circumstances.

 

48. In the case of Ligabue v. Finanze [23] (1952) (Guirisprudenza Italiana 1952,

L. 2.719) there is a translation of a judgment of the Venetian Court of 28.1.52. The plaintiff owned a bonded warehouse at which the German army confiscated a shipment of brandy, during the occupation of northern Italy. The confiscation order stated that no excise duty would be levied on the confiscated brandy, and the proceedings centred around the question as to whether it was permitted to collect the tax.

            The Italian Court held that the confiscation was effected during a period of military occupation and therefore the German forces were competent to issue directives, and the Hague Regulations - which in view of the grounds cited in the judgment were to be considered as part of the law then applicable in Italy - were applicable to the subject at issue. On the problem around which the petition centred, the court said (at 617-618):

           

"It is the opinion of writers, and it appears, indeed, from the wording of that article (48), that the obligation to respect so far as is possible the tax system already in force in the occupied territory, as distinct from the obligation to defray the costs of administration on [p. 307] the same scale as the legitimate Government does not disable the Occupying Power from imposing new taxes or abolishing or modifying those already in existence. And on this basis, orders of the Occupying Power cancelling customs duties on goods imported for military purposes or for the needs of the occupying force may be seen to be justified. But, if the rule laid down in Article 48 is not to be deprived of all force as a provision designed for the protection of the population of the occupied territory, it must be held to require that the imposition of new taxes or the remission of old ones shall be effected by measures of a general character. Fiscal impositions or exemptions effected under colour of the Occupant's power of taxation by particular orders, and creating in effect privileges for individuals prejudicial to the general civil order which the Occupant is bound to maintain, must be regarded as contrary to the international laws of war.

 

            "It follows that the orders for the waiver of customs duties which were made by the German command in favour of Ligabue were irregular in terms of international law; for, as is not disputed, they were made from time to time as requisitions were made upon him, and were not based on any general legislative provision modifying the fiscal system. They were in reality concessions in the nature of privileges such as the international order does not permit." (Emphasis added - M.S.)

           

            To summarize: the court held that the occupying power does have the power to levy new taxes, provided that such is made by virtue of a general provision of a legislative nature, and not by granting extraordinary personal consensi, which have no general legislative form. The petition by the owner of the bonded warehouse was not successful because of reasons which are irrelevant to our case. Evidently, in regard to the essence of our case, the reasons given by the Italian Court speak for themselves.

           

            This Italian judgment is cited by A. D. McNair (Legal Effects of War (Cambridge 1986) 386, note 5) as a reference source on the rule of permissible changes that may be effected in the fiscal system of a territory which is under military occupation. [p. 308]

           

49. This sampling of the views of legal scholars and the mention of a number of instances exemplifying the practice of states lead us to a series of conclusions which are worthwhile summarizing in an interim summary for the purpose of continuing examinations of the petitions according to the relevant criteria.

 

            (a) There is no foundation for the argument that a binding rule has evolved in customary international law, prohibiting absolutely, under any circumstances, any military government legislation seeking to introduce new taxation.

           

            (b) Nor is there, on the other hand, room for any conclusion that new taxation is left to the unrestricted discretion of the military government.

           

            (c) Examination of the commentaries reveals a variety of views. Some assert that Article 48 of the Hague Regulations is an exhaustive description of the powers of the military government, and that anything not expressly permitted therein is prohibited (see, for example, O. Debbasche, op. cit.). This view, it seems, is held by the minority. There is a view which permits the introduction of new taxation, but only when required for the purposes of public safety or "la vie publique" (see, for example, the British and American Manuals and Prof. J. Stone). Among those who hold this view, some refer expressly to Article 43, and some take the stand, in general, that "public order and safety" allow for such legislation, without reference to Article 43 specifically. There are also those who infer that the power to introduce new taxes lie in Article 49, which deals with contributions (see, for example, Seidl-Hohenweldern in the book by K. Strupp and H. J. Schlochauer). However, the application of this thesis is necessarily limited, according to the interpretations, by the wording of Article 49 in everything pertaining to the purposes for which it is permitted to impose contributions, and by the other limitations and requirements accompanying the imposition of contributions, according to the Regulations. Ultimately, the existence of a variety of viewpoints contradicts the thesis that a customary rule has evolved, reflecting a general uniform practice, recognized as law.

 

            (d) Most commentators link the powers relating to the imposition of taxation to general legislative powers and the resulting conclusion is that the powers are delineated and restricted by the provisions inherent in the wording and the interpretation of Article 43 of the Hague Regulations.

           

50. (a) The view adopted by the Respondents is that they acted within the framework of the provisions of Article 43, and did not overstep its bounds.

            Having rejected the argument that a binding customary rule exists, absolutely prohibiting new taxes, and having raised the argument that the Respondents acted within the framework of Article 43, we must now examine the extent of the powers according to the said article, in order to be able to determine whether the Respondents indeed did not deviate from Article 43 to the extent that justifies our intervention. [p. 309]

           

            (b) The boundaries and interpretation of Article 43 have been considered by this court on various occasions (Regional Electric Corp., Jerusalem v. Minister of Defence [17], Ayub [2], Dvikat [1], Haetsni [3], Abu Awad [4], and recently Tabib [16] in the judgment of my honoured friend, Judge Shilo). The matter has also been examined comprehensively by Prof. Y. Dinstein in his article "Judicial Review of the Acts of the Military Government in the Occupied Territories" (1973-74). Iyunei Mishpat 330, 334 and by E. Nathan in his above mentioned article.

            Hence, there is no reason for me to repeat the main points of the article and I will be satisfied with a summary of what is acceptable to me in this matter. This summary is required inter alia, because of the lack of uniformity in emphasis present to some degree in the rulings of this Court, on the one hand, and in the remarks made in the course thereof, on the other.

           

            (c) The duty of the military government, which is defined in Article 43, as has already been explained, arises out of the very fact that it has set up effective rule in a territory. After the clouds of battle disperse and it becomes apparent that the former Government has been defeated, and the military power which removed it from the territory is in power, the duty automatically arises to take the steps dictated to it by Article 43, and they are:

           

       (1) Restoration (in the original "retablir"), as far as possible, of order and public life.

       (2) Assurance (in the original "assurer", to ensure), as far as possible, of order and public life.

           

            Here it is irrelevant whether the armed forces that were involved in the fighting still exert authority, or whether a special governmental framework has been created, whose particular task is that of administering the territory. However, a permanent and continuing administrative system will be faced with a greater range of problems demanding solution, than the military forces which subjugated the territory, whose function is military/operational, and not administrative. Nor is it redundant to recall that the restoration of order and public life to what they were is not in line with the duty to assure these aims: restoration, as far as required, is the first step, and assurance of the above mentioned aims is an added and separate obligation that is not necessarily satisfied in every case by restoration to the former situation, and it exists even if the situation did not deteriorate during the battle and there was no need for restoration to the former situation. That is, in the matter of the obligation to assure public life, a continuing obligation is involved, rather than a one-time act, and it should accordingly be fulfilled, only in consideration of the circumstances, which change from time to time, and with due regard to the needs occasioned by the passage of time, and that will continue to change with the passage of time. The circumstances referred to are not simply those of security, but also relate to the economy, health, communications and the like. Therefore, the duty to restore things to what they were, cannot overshadow the further duty, which is linked to the dynamics of life. [p. 310]

           

            The drafters of the Regulations defining these duties did not use unequivocal and absolute language, but from the outset kept in mind the objective difficulties that might emerge from a change of government resulting from a military operation, when the new government continues to function as a military government which is of legal temporary character. Hence, the duties were defined as being conditional on what is possible (d'autant qu'il est possible). The degree of possibility of fulfillment of the duties is measured according to a complex of circumstances, that is, not only in the light of the needs of the territory, but also in the light of the legitimate needs of the military government (cf. Dr. E. Rauch, The Concept of Military Necessity in the Context of the Law of War, Federal Ministry of Defence, (Bonn 1979)12), who is responsible for the concept of "belligerent occupation" (translation of the expression by Prof. Y. Dinstein) and whilst striving for a proper balance between the two.

 

            (d) In restoring and ensuring public life, the military government must obey the existing laws in the territory, unless it is absolutely prevented from so doing (sauf empechement absolu - unless absolutely prevented). What does this condition mean? Prof. Y. Dinstein, in his article in Iyunei Mishpat B, p. 509, says:

           

"It is generally agreed that the adjective 'absolute' is not as absolute as it sounds and in truth makes little difference. The correct and accepted meaning of 'absolute prevention' is 'necessity'. "

 

            The necessity referred to is military necessity, on the one hand, and humanitarian considerations, on the other, and absolute prevention may therefore arise from the legitimate interests of the military government and the maintenance of public order, or from interests of concern for the local population and the assurance of its public life, all, of course, whilst maintaining a reasonable balance between the considerations, whilst the military interest or necessity is not in itself enough to permit a serious violation of human rights. A similar conclusion was reached by Schwartzenberger (supra vol. 2 at 193) who inferred from the decision of a mixed German-Belgian tribunal in Ville d'Anvers v. Germany (1925) [27] at 716, that the term "absolutely prevented" should not be taken literally but should be seen as an imperative which is relative and conditional upon a combination of circumstances.

           

"as any other supposed absolute in international law"

 

            As he said:

 

"the word "absolutely" had to be interpreted in functional terms." [p. 311]

           

            That is, the obstacle to observing the law in its old formulation is absolute if conditions and circumstances demand legislative intervention for a purpose legitimate under Article 43.

            The British Army Manual sums up the matter in even broader terms, that is, without prescribing a duty to balance the different necessities saying at 145, para. 523:

           

"If the exigencies of war, the maintenance of order, or the welfare of the population so require, it is within the power of the Occupant to alter or suspend or repeal any of the existing laws."

 

            Among the examples cited there are all the provisions regarding trade relations between the area of the military government and its home country, including the removal of customs barriers (at 146, para. 530). Likewise, the introduction of the currency of the home country as legal tender, as well as other similar fiscal measures, are permitted, provided that their purpose is not solely for the benefit of the military government and its state, and provided that they are not designed to harm the economy of the territory, in order to enrich the state maintaining the military government. The opposite may also be inferred from these observations, that is, that divergence from existing legislation and the introduction of new legislation is a form of expression of the presence of "absolute prevention" to continue to observe the law enacted by the previous government, if the new legislation truly and honestly flows from the necessity of adapting the territory's economy to changing circumstances and avoiding adverse effects on its stability and strength, adverse effects that are foreseeable if the new legislation is not enacted. The new legislation will not be disqualified merely because at the same time it fits in with the fiscal policy of the military government and of its home country, which has nothing to do with the interest of self-enrichment or the intention to harm the economy of the territory. The need to preserve balance and co-ordination between the economic systems so as to maintain orderly economic life in the territory is therefore legitimate even if that requires changes to the existing law. The same spirit was expressed by my honoured friend, Judge Shilo, in H. C. 202/81 [16] where he said (at 630-631):

 

"The duty lies on the government to respect the laws in force when the territories were occupied unless there is an 'absolute prevention.' What is an 'absolute prevention?' E. H. Schwenk rightly notes in his comprehensive and exhaustive article that this juxtaposition of words has no meaning in their context, since the occupant, as supreme power, will never be prevented from respecting the laws in force, if he sq wishes. E. H. Schwenk, in the same article, refers to the views of many scholars on this point. None of them takes the stand that the duty to respect the law in force is absolute. [p. 312] We shall cite only some of them. L. F. L. Oppenheim holds that the law in force may be modified if the modification arises from the occupants' interests or military requirements; E. H. Feilchenfeld believes that change is permitted when it is 'sufficiently justified.' Another view is that 'absolute necessity' justifies a modification of existing laws. What all these views have in common seems to be that as long as the occupying power is diligent in restoring and ensuring public life he is not bound by the existing laws, especially in the area of administrative and public laws, to differentiate perhaps from laws intended to ensure the basic rights of the citizen. E. H. Schwenk himself says:

"....it seems that Article 43 enables [the occupant -Y.S.] to amend civil and criminal law in those matters where the change is justified by the needs of the good of the public, or of its (the occupant's) military concern."

           

And in summing up, Judge Shilo (at 415) remarks:

 

"Although the legislative power of the military occupant is theoretically limited, in practice it includes general authority over all aspects of the civil life of the enemy population, if the occupation continues for an appreciable length of time..."

 

            In H. C. 337/71 (1) at 581-582, Acting President Sussman, after considering the views of E. H. Schwenk, says:

           

"The occupation of enemy territory vests in the occupying power the right to do whatever is required for military purposes and the security of its forces, and as Oppenheim-Lauterpacht write in International Law, para. 169 - to this end its authority is almost absolute....

            "In fact, the rule is that the occupant continues to administer the affairs of the occupied territory according to local laws as they were in force on the date of occupation. However, scholars of international law have not overlooked the fact that when military occupation persists for a lengthy period...the duty of the occupant towards the civil population even requires it to amend the laws, since social needs change during the passage of time and the law must respond to those changing needs."

           

            From all the foregoing, it can be understood why E. H. Feilchenfeld (supra at 49) linked the authority to initiate new taxation necessitated by the territory's requirements to the powers vested in military government by Article 43. [p. 313]

           

            In this connection, there is special importance attached to the time element, of which more later.

           

            (e) The needs of any area, whether under military government or otherwise, will naturally change over the course of time, along with attendant economic developments. As explained above, the drafters of the Regulations were not satisfied with defining a duty which is discharged by restoration to the former situation. The length of time that a military government continues may affect the nature of the needs involved, and the urgency to effect adjustment and reorganization may increase as more and more time elapses. The argument put forward by Prof. G. von Glahn in his opinion as submitted to this Court that there is no foundation for the idea that the duration of military government affects the character of the duties and the extent of the powers of military government, is, therefore, irreconcilable with the character of the duties and powers vested in it by Article 43. It is true that this article contains no rules as to adjustment or reclassification bound up with, or conditional upon the time element, but the effect of the time dimension is implicit in the wording, according to which there is a duty to ensure, as far as possible, order and public life, which patently means order and life at all times, and not only on a single occasion. The element of time is also decisively involved in the question of whether it is absolutely impossible to continue acting in accordance with existing law, or whether it is essential to adapt that law to new realities. In the legal interpretation of Article 43, the relationship between the time element, and the form taken by the provisions of Article 43 is stressed more than once. It follows that the time element is a factor affecting the scope of the powers, whether we regard military needs, or whether we regard the needs of the territory, or maintain equilibrium between them.

           

            Reference to the subject of time in legal literature is frequent, but I mention only as an example Loening's study in Revue de Droit Internationale et de Lois Comp. vol. IV, 632-634, where he stresses the duration of the military government; if a short period is involved the adoption of minimum measures in order to ensure safety and the requirements of belligerency is sufficient. If, however, a lengthy period is involved, he holds that special attention must be paid to the needs of the population. D. A. Graber, supra at 290, points out the absence in the Hague Regulations of specific provisions in many fields and, in this connection she adds that the longer the military government continues, the greater its obligation, as she says,

 

"to assume full governmental burdens."

           

            The observations of Prof. J. Stone on the matter at hand have already been mentioned. It may be inferred from the stand he takes that, from the viewpoint of the extent of the duty and its attendant powers, the passage of time creates a gradual process of equating the status of the military government with the status of the former government.

           

            In his notes on H. C. 337/71 (8) Prof. Y. Dinstein in Iyunei Mishpat 2 at 511, [p. 314] also refers to the legislation of the British military government in this country since 1918. As we have seen above, that government refrained from amending Ottoman law, but after a lapse of two years the needs of military administration and of the population together apparently necessitated the introduction of amendments, including the enactment of new taxation. We have already given the details of this above (cf. N. Bentwich, The Legal Administration of Palestine under the British Military Occupation. The British Year Book of International Law (1920-21) 139, 145-146).

           

            To sum up, it seems that one cannot do better than to recall the words of Acting President Sussman (his title then) in H. C. 337/71 (8) at 582. He said:

           

"Life does not stand still and no government, whether an occupier or not will not properly fulfil its duty to the population if it freezes the legislative situations and refrains from adapting it to the needs of the times."

 

I accept the observations, which vary in form, of Dinstein, (Iyunei Mishpat 2, at 509-510; Judge Nathan, supra at 109, 165) that the welfare of the population should not be the sole criterion but should be integrated and balanced with the considerations of military necessity. However, in the prevent case, the legislative change which is the subject of the hearing also meets these requirements: Undoubtedly, military government has a clear and direct interest in avoiding any disruptions in the regional economy and inter alia it will do all it possibly can to prevent as far as possible reduction in trade or increase in unemployment. To cut off existing markets, especially those created during the period of military government, has a direct effect on incomes and therefore upon the standard of living; unemployment is a fermenting and unsettling factor from the standpoint of security and both these phenomena are among those the military government tries to avoid in so far as possible; at least a military government that aspires to the good of the public in the territory, and the good of the security interests of the occupier in so far as possible and practicable. It is all the more reasonable in the case of the Israeli military government, which not only does not enrich itself from the revenues of the territory but injects money of its own into the territory (Y. Lipshitz, Economic Development in the Occupied Territories 1967-1969 (Maarachot 1970) (in Hebrew); The Administered Territories 1972/1973 - Data on Civilian Activities in Judea and Samaria; The Gaza Strip and Northern Sinai (Co-ordinator of Government Operations in the Administered Territories, Ministry of Defence) p.14; Survey of the Administered Territories 1967-75 (Ministry of Defence) 5, 10),

 

            Prof. Y. Dinstein (Iyunei Mishpat 2, at 511) notes that no objective criterion exists to distinguish between a valid or invalid concern [p. 315] for the local population. However, in most cases, the criterion can be very simple, that is whether the military government is filled with the same concern in regard to its own people and applies the same measures taken in the area of military government in its own area. I do not think that this criterion is exhaustive and it would seem that neither does Dinstein think so. Since situations may occur where conditions in a territory and special circumstances demand legislative steps not required at the time, or at all, in the home country, but for the present purpose, the above criterion will suffice to demonstrate the reasonableness of the use of the powers vested by Article 43 for instituting a value added tax. It is not an extraordinary arbitrary tax, but the introduction of a fiscal measure with positive aims, which was also introduced in Israel at the same time.

            To remove doubt, I should add that adoption of the above test is in addition to the above, that is, it is an additional consideration justifying the conclusion that harming the territory's economy by cutting off the labour force and trade from its environment in existing political conditions injures the population and creates - simultaneously and concurrently - a definite security danger. This point of view was expressed - at least as regards the declaration of intentions - in The Administered Territories 1967/1971- Data on Civilian Activities in Judea and Samaria; The Gaza Strip and Northern Sinai (Co-ordinator of Government Operations in the Administered Territories, Ministry of Defence) 76 where it is said (at 8):

           

"The Six Day War abolished to all intents and purposes the 'green line' that in the past demarcated the Israeli sector from the administered territories. Naturally and unavoidably, these areas are becoming dependent upon Israel for all their economic and service needs. As long as this situation continues.... it will become harder and harder to preserve a standard of living that differs markedly in the territories from that in Israel. If one wants to prevent a potential outbreak of social unrest, the only way is to work consistently to raise the standard of living and the standard of services...."

 

            As we have already said, securing the rights of the population under Article 43 is achieved not only by taxation in the territories but is also accompanied by streaming resources from Israel (see Meron, The Economy of the Administered Territories 1977-78 (Research Department of the Bank of Israel, 1980) (in Hebrew); Y. Lipshitz, in his above-mentioned book, at 111). This emphasizes the relevance of the conclusions submitted to the Treasury in 1972 by [p. 316] the Asher Committee on whose recommendations value added tax was introduced into Israel:

 

"The security and social requirements of the State do not make possible the drastic reduction of expenses. It may be foreseen that these requirements will even increase in the near future. In such a situation it is essential to seek out resources to ensure the necessary income without adversely affecting the will of the population to work and produce."

 

51. In view of what the Asher Committee said, some explanation of the nature and purpose of value added (excise) tax is also called for at this point.

            The term "value added" indicates the addition in value which an economic unit contributes by its activity. Generally speaking, this added value is expressed by the difference between the purchases and sales of an enterprise, or between the costs of services provided and services received (Value Added Tax Bill, 5735-1975). Every businessman and provider of services in Israel (and under a corresponding order, in the territories as well) is liable for the said tax. This includes members of the free professions and every person - other than salaried employees - who does work, carries on a trade, or renders a service for a consideration. A consequence of the tax is that every businessman must keep records and accounts according to the size and nature of his business; a small business is obliged to keep books on an elementary basis only, but as the business turnover increases, more detailed accounts are necessary. The businessman calculates the tax on the basis of what he sold, and he is entitled to deduct from it the amounts that he paid as value added tax on goods he purchased or services he received. The businessman is also entitled to deduct the tax that he paid on goods imported for his business purposes. The same rights are available to business people in the occupied territory, also applicable, of course, to goods they bought in Israel or imported via Israel for which they paid the tax as usual.

            Obviously, the method of calculating the tax prevailing in Israel under the above tax regulations, would of itself have created a gap necessitating fiscal or other protective measures, had the territorial contiguity and the free movement of goods and services not been accompanied by identical indirect tax laws as described.

           

            In light of the broad base of the tax - and its character of a tax reform - it was also accompanied by substantial changes in the system of indirect taxation that was in force in Israel at the time of its introduction, to which the system prevailing in the occupied territories had been equalized by the late sixties and the early seventies (see the article by Advocate M. Hertzberg and Review of the Occupied Territories 1972-73, supra at 82).

            The tax was initiated after a comprehensive comparative study, because it was also in practice in the European Common Market and other countries in Europe, in North Africa and South America. [p. 317]

            A Knesset committee that in 1971 toured European countries where the tax was in effect, concluded (Knesset Minutes (5735)2420) that:

           

"It is the most reasonable, just and effective of all existing indirect taxes known in the world. It encourages export and investment and it is capable of preventing injustice and discrimination and is neutral in relation to various elements of the economy and their activities."

 

            The Treasury regarded the tax as a central means for the achievement of their objectives in economic policy, especially fiscal policy (Knesset Minutes, supra). Its noteworthy features were simplicity of operation because of its uniform rate, general application on a broad basis, the contribution it makes to exports and investments and its resulting non-discrimination between different branches of the economy. Israel's association with the Common Market made its introduction especially important as a side effect of the removal of customs barriers between the members of the EEC and Israel, a matter which understandably had direct repercussions in the territories. The integration of Israel into the EEC and the reduction of customs duties that followed in its steps automatically obligated, the existing political and economic situation, the imposition of the tax, which was present in all the countries of the Market, and the changing of customs duties. Economic integration - as a compelling motive for introducing the tax - was obviously a dominant factor in all decisions having implications on the economic relations between Israel and the territories.

           

52. (a) The fiscal purposes outlined above of necessity oblige consideration of the facts of economic life in the territories. However, this obviously means the principal characteristics, since it is impossible to conduct an exhaustive study and discussion in this field in the judgment of this Court.

            In his opinion, Prof. G. von Glahn refers to the economic connections between Israel and the territories but, unfortunately, does not give the sources of the information he used as a basis for his conclusions. He negates the significance of the argument about the economic dependence of the territories on Israel or of the specially close relations between Israel and the territories, and it seems that anyone wanting to learn from the facts presented in his opinion would conclude that in actuality there is nothing more than a movement of labour and trade between the occupied areas and Israel.

           

            The picture he draws does not conform to reality.

           

            (b) To present the processes in a general and summary fashion it would be proper to look at the facts just prior to the introduction of the value added tax in 1976. In this regard the Review of the Administered Territories 1967-75, mentioned above, points out, at p. 2:

           

"In the period mentioned, the economy of the territories was characterized by a very high rate of growth. The growth rate of G.N.P. reached on the average 18% per year, which was [p. 318] higher than that of many other economies in the world. As a result of technical improvements, changes in labour methods and practices, the introduction of new materials and modern mechanization in many branches of manufacture, including agriculture, local output per worker grew at the average rate of 12% per year.

 

            "The unprecedented rise in income and profits in manufacturing industries, as well as the increase in the availability of work in Israel, led to an average 11% increase in private consumption per year (an outstanding increase in comparison with many developed countries).

"The ties created between the limited economy of the territories and the developed Israeli economy grew much closer during the eight years. As a consequence, there was a yearly increase in the imports and exports to and from the territories. Exports, of which the export of labour services to Israel is the main constituent, increased by 28% annually while imports, mainly from Israel, increased by an average of 19% per year.

"As a result of the increasing demand for labourers in the territories and in Israel since 1968, unemployment was eliminated and the number of employed persons increased by 6% per year. As a result, there was an average 15% annual increase in workers' wages, while the wage increases of the middle income group in the territories contributed to greater equality in the division of income."

 

We shall now examine these processes in greater detail.

 

            The effect which Israel had upon the territories was and remains significant for the welfare of the population. The most outstanding indication of that is the growth and expansion it brought to the economy of the territories (A. Bergman, Economic Growth in the Administered Territories 1968-73 (1974) p. 9). Thus, in Judea and Samaria, the G.N.P. trebled during 1968-72, and in the Gaza Strip the result was even more emphatic. As a result of modernization of labour methods and technology, agricultural productivity rose by about 12% per year, and this statistic is very important, because agricultural production in 1972, for example, was 37% of total production. The increase in agricultural products was due, to a decisive degree, to the assistance from Israel and the innovations it instituted. It may thus be noted, for instance, that the number of tractors in Judea and Samaria increased from 459 in 1968 to 1,898 in 1979, and in the Gaza Strip from almost nothing in 1968 to 418 in 1979 (Military Government in the Territories Administered by Israel 1967-80, p. 449). Industry in Judea and Samaria was not developed in 1967 with the establishment of the Military Government, and it represented only 8% of Jordanian industry. During the period of military government it has grown gradually by 15% per year (from IL 43,000,000 a year in 1968 to IL 75,000,000 per year in 1972), and this increase maintained the status of industry. During the same period, the number of workers in industry increased from 2,000 to 7,000. [p. 19] Industrial output also increased (Quarterly of Statistics in the Territories, III, 3, (1973) p. 46, 52; Israel CBS, Statistical Abstract of Israel 1973, No. 24 (Jerusalem, 1974) 473). During the same period, sub-contracting connections were established between Israeli industry and industry in the territories. Industries were also established with direct Israeli investment, and loans were made to industry.

           

            A third important statistic is that income from wages earned in Israel (incoming revenues) constituted a significant proportion of the G.N.P. (e.g., 30% in 1973). (M. Nissan, Israel and the Territories, 1967-77, Turtledove Publ. (1978) 188). It should be mentioned here that as a consequence of the 1967 War, unemployment in the territories rose to 30%. That changed very quickly, largely as a result of employment in Israel (A. Bergman, in his above-mentioned book, p. 34), as a direct effect of the removal of the prohibition on movement and the creation of free conduct from Israel to the territories and vice versa. As a result of this, unemployment disappeared (M. Nissan, supra at 127).

            In light of these economic statistics the commercial relations between Israel and the territories were described by M. Nissan, supra at 127 as:

           

"a de facto common market between Israel and the Administered Territories."

 

            Incidentally, according to what Nissan says, more than half of the exports of the territories to Israel are industrial goods, and not agricultural produce, that is to say, products which are subject to value added tax, which is the subject of this petition. M. Nissan adds in this connection (at 189, note 28):

           

"It is important to note that, in fact, more than one-half of West Bank exports to Israel were industrial - not agricultural - products. This suggests that the classic 'colonialist model' applies only at a very general level."

 

            Thus, Israel has become a major partner in trade with the territories. Now as to the tangible expression of development in the standard of living in the territories: in 1966-67, average annual per capita income in Judea and Samaria was $200. By 1970, that figure had already increased to $300 (M. Bruno, Israel Policy in the Administered Territories in I. Howe and C. Gershman, Israel, the Arabs and the Middle East (New York, 1972) 255-256). [p. 320] Incidentally, for the growth of ownership of household appliances in the territories, see Military Government, supra at 442, 448, 449.

           

            Returning to the analysis of M. Nissan (at 129):

           

"The general economic prosperity in the territories was due considerably to close trading ties with Israel - and was not based primarily on domestic development. The rise in the Arab standard of living and a changed lifestyle, based on economic prosperity, was founded insecurely on the accessibility of Israeli employment and products."

 

            I draw attention to the world "insecurely" in the above passage which has direct implications, under existing conditions, to the present matter, in so far as changes in the flow of commerce and manpower are concerned.

            The initial picture described above did not change following the Yom Kippur War in 1973, that is, before the introduction of the value added tax in the territories. M. Nissan, supra at 150, says:

           

"The war did not upset the pattern of intensive trading ties between Israel and the territories whose economies were, by then, closely integrated and mutually dependent. In 1975, 83 per cent of the area's trade (imports and exports) was with Israel as opposed to 73 per cent in 1972. Nearly 90 per cent of the area's foreign products were imported from Israel in 1973 and this formed approximately only five per cent of Israel's foreign trade. The benefit of close trading relations maintained its economic value over time."

 

            The statistics set out above point to the great dependence of the economy of the territories on that of Israel and it is therefore obvious that any separation of the economies as long as Israel rules over the territories - if that were at all possible in view of the territorial contiguity and the continuation of free conduct - would likely have immediate destructive effects on the economy of the territories and the well-being of the population. Cessation of free movement would immediately have even more serious ramifications from the viewpoint of manpower in the territories and from the viewpoint of trade and industry.

 

            (c) To sum up, in view of the economic realities created by the conjunction of political facts (military government) and geography (territorial contiguity) directly bound up with the relative sizes of the economies and the sectors comprising [p. 321] them (agriculture, industry, employment), the economy of the territories is umbilically tied to the economy of Israel. For this reason, it was decided at the time of the establishment of the military government that the two economies would not be separated (see Lipschitz, in his book, above-mentioned) along the lines, as it were, of the Armed Truce before 1967. To separate them as aforesaid would impede the possibility of a return to orderly life and prevent the effective observance of the duty regarding the assurance of "la vie publique."

            (d) As a result, the military government at its outset took action to equalize rates of indirect taxes. The argument of the Respondents, that economic development in other countries with which Israel and the territories maintain close economic ties cannot leave the territories untouched is therefore reasonable. Having seen that a value added tax must be introduced in Israel, the wheel could not have been turned back without affecting the proper fulfilment of the duties deriving from Article 43. It is such circumstances that E. H. Feilchenfeld meant when he said (supra at 49):

           

"If the occupation lasts through several years the lawful sovereign would, in the normal course of events, have found it necessary to modify tax legislation. A complete disregard of these realities may well interfere with the welfare of the country and ultimately with 'public order and safety' as understood in Article 43."

 

            The integration and binding together of economies has both good and bad results: just as they found expression in developments and changes in the standard of living, they also required strict attention to the parallel supervision of fiscal developments. That had been done in regard to customs duties and indirect taxes in the past, and the same was required upon the introduction of value added tax in Israel.

           

            That is to say, fiscal or economic developments that are of significance in Israel directly affect the territories either negatively or positively, and both the welfare of their inhabitants and the needs of Israel affect - in a way not given to clear differentiation - the answer to the question of whether parallel fiscal measures should be introduced at the same time in both Israel and the territories. The method of tackling economic problems in Israel cannot, it seems, stop at the old pre-1967 borders which today are open for passage of people and trade. An economy supported by and leaning on the Israeli economy in many different aspects, will be immediately harmed if any attempt is made to restore economic relations to what they were before 1967. In view of the foregoing, the evaluations of the committees appointed to examine the need for the introduction of the value added tax as presented in the Petitioners' reply, cannot be rejected. [p. 322]

           

            A similar approach was adopted by the Israel National Section of the International Commission of Jurists in its publication The Rule of Law in the Territories Administered by Israel, (1981), at 94-95, where it is said:

           

"Immediately prior to the Introduction of VAT in Israel in 1975, the question arose as to whether a similar arrangement was necessary in the Region in view of the close economic ties that had developed over the years between Israelis and the local population.

            "In order to examine this question, two committees of economists were set up, one by the Ministry of Defence and the other by the Ministry of Finance. Both these committees came to the conclusion that the same arrangement in this regard should apply to both Israel and the Region, primarily to avoid causing economic harm to the merchants and traders in the Region.

            "More particularly, it seemed to the committees that if such an arrangement were not applied in the Region, the following results would ensue :

           

            (a) Exporters in the Region would not be entitled to recoup the VAT in the same way as Israeli exporters.

            (b) Israelis accustomed to purchasing goods or services in the Region would cease to do so because they could not deduct from the VAT chargeable on their subsequent transactions the taxes, other than VAT, that had been paid by the residents of the Region. Consequently, the Israelis would look for alternative sources in Israel so as to obtain such tax benefits.

            (c) Residents of the Region accustomed to purchasing goods or services in Israel would pay the VAT in Israel but would not be able to offset such tax on a subsequent transaction in the Region. As a result, [p. 323] they would effectively be making a smaller profit than their counterparts in Israel, particularly where the sale price is fixed.

            (d) All Israeli Government companies are prohibited from purchasing goods and services other than those included in the VAT system. As the activities of Government companies in Israel are very extensive, great harm would be caused to those residents in the Region who had been selling them goods and services.

(e) VAT was introduced in Israel within the framework of reform of indirect taxation, and, as a result of its introduction, many other indirect taxes, especially purchase tax, were subsequentially reduced. Therefore, had VAT not been introduced in the Region, indirect taxes there would have been appreciably higher than in Israel."

           

53. (a) When the Israel Defence Forces entered Judea and Samaria in 1967, there already existed in the Region a framework of legislation that permitted the imposition of excise duties and indirect taxes on certain local and imported products. This legislation allowed for further types of goods to be taxed from time to time, along with changes in the rates of taxation. On the other hand, no tax like the added excise duty was then in force in the Administered Territories.

 

            (b) Shortly after the military government was set up, the customs barriers between the territories and Israel were abolished and the rates of indirect taxes and excise duties in the territories were equalized with those in force in Israel. At the same time, close bilateral economic relations were instituted that were expressed inter alia in the movement of trade and manpower.

           

            (c) The existence has not been proven of any customary rule in public international law that prohibits, in all circumstances, legislative amendments in existing taxes, nor has the existence been proven of any practice accepted as law that adopts an interpretation of Article 49, from the positive provisions of which one may infer the negative with regard to any further powers in the field of taxation. On the contrary, not a few analysts hold views opposite to those put forward by the Petitioners. The main point is that the divergence of the opinion among the commentators is substantial. [p. 324] Accordingly, there is no majority, or decisive majority, in support of the interpretation put forward by the Petitioners.

           

            (d) Even among those commentators whose views are close to those advanced by the Petitioners, there are some who distinguish between direct and indirect taxes, and see the scope of activity of the military government regarding the latter, as being very wide. Customary international law does not contain any prohibition on dismantling customs barriers, provided that the purpose of the action is not to harm the economy of the occupied territories.

           

            (e) Some commentators see Article 43 as a basis for new fiscal legislation if conditions in the territory warrant a departure from what exists and adoption of new rules necessary to fulfil the purposes facing the military government, in light of the first part of Article 43.

           

            (f) In view of all this, we have not seen fit to dismiss the submission of the Respondents that the introduction of the value added tax in Israel also necessitates as a consequence the introduction of parallel taxation in the territories, that is, that the fiscal solution adopted was necessitated by the complex of economic facts confronting the military government, and that it was in the nature of an essential measure in the existing political reality, in order to facilitate continuation of a situation embracing a variety of positive economic phenomena that are most important for the territories and its population, in the given situation, and further, and this is the main thing, the argument is not to be denied that the opposite approach, which is pleaded by the Petitioners, is likely to bring serious economic harm to the territories and its population, which would cause security dangers. The reasonableness of the Respondents' approach is patent, and in the light of the comprehensive review of the rules of customary international law in general and the Hague Regulations in particular, in the light of their development, interpretation, and practice that has evolved in consequence thereof, we find no occasion to deny the legality of the steps they took .

 

54. The Petitioners also submitted that Article 64 of the Fourth Geneva Convention of 1949 purportedly prohibits the imposition of penal sanctions for non-observance of the obligations arising under the added excise Orders. We have expanded earlier on the distinction for the purpose of this Court between conventional and customary rules of the Laws of War. However, even if we had referred to the terms of Article 64, it would not have helped the Petitioners. Among other things, that article permits penal legislation:

 

"to maintain the orderly government of the territory."

           

            In view of the recognized interpretation, this concept is parallel to the provisions regarding the permitted purposes of legislation arising under Article 43 (J.S. Pictet, Commentary (vol. N 1956) and G. Schwartzenberger, vol. II, supra at 194). There is nothing, therefore, in Article 64 to add to or detract from the case before us. [p. 325]

           

55. The Petitioners also argued that it was technically impossible to abide by the instructions regarding the keeping of books, as required by the said Order. In view of the nature and extent of the Petitioners' business one can only express surprise that this plea was raised at all. The requirements of a small businessman are elementary, and the owner of a larger business cannot seriously plead this argument.

 

56. The Respondents opposed the petition of the Petitioners by pleading laches. I shall not deal with the question of whether in the circumstances of the case there was anything on which to base this plea, but it is not to be inferred from the reference to the matter itself that the plea was entirely without foundation as regards the Petitioners or some of them. However, according to the discretion vested, in my opinion, in the High Court of Justice in such matters, and in view of the far-reaching implications of the matter, we have decided that it would be right for this case to be adjudged on its merits and not merely on the basis of some procedural plea.

 

57. In view of the foregoing, it has been decided to dismiss the Petitions and set aside the orders nisi made thereunder.

 

            The Petitioners in each of the Petitions shall as a group bear jointly and severally the costs of the Respondents in the sum of IS 25,000 for each group of Petitioners in each of the two Petitions.

           

Judgment given on April 5, 1983.

HCJ 9132/07

Jaber Al-Bassiouni Ahmed and others

v

1.  Prime Minister

2.  Minister of Defence

 

The Supreme Court sitting as the High Court of Justice

 [27 January 2008]

Before President D. Beinisch, Justice E. Hayut and Justice J. Elon

 Petition to the High Court of Justice for an Order Nisi and an Interim Order

 Israeli Supreme Court cases cited:

[1]       HCJ 3451/02 Almadani v. Minister of Defence [2002] IsrSC 56(3) 30; [20023] IsrLR 47.

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

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

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

[5]    HCJ 2901/02 Center for the Defense of the Individual v. Commander of the IDF Forces in the West Bank [2002] IsrSC 56(3) 19.

[6]    HCJ 2936/02 Physicians for Human Rights v. Commander of the IDF Forces in the West Bank  [2002] IsrSC 56(3) 3.

[7]     HCJ 2977/02  Adalah - Legal Center for Arab Minority Rights in Israel v. Commander of the IDF Forces in the West Bank [2002] IsrSC 56(3) 6.

[8]   HCJ 3022/02 LAW - Palestinian Organization for the Defence of Human Rights and the Environment v. Commander of the IDF Forces in the West Bank [2002] IsrSC 56(3) 9.

 

For the petitioners -   N. Peleg, Prof. K. Mann, F. El-Ajou, H. Jabareen, S. Bashi.

For the respondents -   G. Shirman, O. Mendel

 

JUDGMENT

 

President D. Beinisch

1.  The petition before us is directed against the respondents' decision to reduce or limit the supply of fuel and electricity to the Gaza Strip. In their petition for relief from this court, the petitioners specified primarily the need for various types of fuel (gasoline and diesel) for the proper functioning of hospitals and water and sewage pumps, as well as the need for the supply of electricity, whether via power lines from Israel or through the supply of industrial diesel for operating the Gaza Strip power plant.

2.  The background to the petition is the belligerent actions that have taken place in the Gaza Strip for a long period, and the ongoing campaign of terrorism directed against the citizens of Israel. The terrorist attacks have intensified and worsened since the Hamas organization took control of the Gaza Strip. These attacks include the continuous firing of rockets and mortar shells at civilian targets in the territory of the State of Israel, as well as terrorist attacks and attempted attacks targeting civilians and IDF soldiers at the border crossings between the Gaza Strip and the State of Israel, along the border fence and in the territory of the State of Israel. The respondents' decision to limit the supply of fuel and electricity to the Gaza Strip was made in the framework of the State of Israel's operations against the ongoing terrorism. The following is the text of the decision that was adopted by the Ministerial Committee on National Security Affairs on 19 September 2007:

'The Hamas organization is a terrorist organization that has taken control of the Gaza Strip and turned it into hostile territory. This organization perpetrates acts of hostility against the State of Israel and its citizens, and it bears the responsibility for these acts. It has therefore been resolved to adopt the recommendations made by the security establishment, including the continuation of the military and intelligence operations against the terrorist organizations. Additional restrictions will also be placed upon the Hamas regime, to the effect that the passage of goods to the Gaza Strip will be limited, the supply of fuel and electricity will be reduced and restrictions will be imposed upon the movement of persons to and from the Strip. The restrictions will be implemented bearing in mind the legal ramifications of the humanitarian situation in the Gaza Strip, in order to prevent a humanitarian crisis.'

The petition is directed against this decision.

3.  The petition against the decision was filed on 28 October 2007 and it was heard on 7 November 2007, in the presence of the parties. On the date of the hearing the state gave notice that a final decision as to the implementation of the restrictions on the supply of electricity to the Gaza Strip had not yet been made; therefore we only heard argument regarding the restrictions on the supply of fuel. During the hearing, counsel for the respondents told the court that the state recognizes that it has an obligation not to prevent the supply of basic humanitarian needs to the Gaza Strip, and it therefore announced that it would monitor the situation and ensure that the cuts being made do not affect the supply of basic humanitarian needs. At the end of the hearing, we ordered the state to present, within seven days, the data on which it based its assessment of the impact of reducing the fuel supply to the Gaza Strip, and explain how it would monitor and check the data of which it intends to make  use in safeguarding the humanitarian needs of the inhabitants of the Gaza Strip.

Reduction of the fuel supply to the Gaza Strip

4.  On 29 November 2007 we held, with regard to that part of the petition relating to the reduction of the fuel supply to the Gaza Strip, that the fuel that the Palestinian Energy Authority buys from the Israeli Dor Alon Co., which is distributed by private suppliers to the highest bidder, with no scale of priorities, may also be distributed in another manner. We said that the various types of fuel supplied to the Gaza Strip could be distributed according to a scale of priorities that takes into account the humanitarian needs of the civilian population, as well as the functioning of the generators that operate the water pumps and electricity plants in the Gaza Strip. In our decision we accorded weight to the state's position that at this time, when belligerent acts and missile attacks are being perpetrated against Israeli towns, some of the fuel that enters the Gaza Strip is in fact used for the various purposes of the terrorist organizations; in such circumstances the reduction of the fuel supply, in the controlled manner in which it is implemented, is likely to damage the terrorist infrastructures and affect their ability to operate against the citizens of the State of Israel, since the amount of fuel that enters the Gaza Strip is supposed to suffice only for the humanitarian purposes that require the use of fuel. We were therefore not convinced at that stage, on the basis of the data presented to us, that the respondents' decision to reduce the amount of fuel allowed into the Gaza Strip through the border crossings with Israel violated the basic humanitarian needs of the Gaza Strip at that time. We therefore held that there was no basis for any order nisi or interim order concerning the reduction of the fuel supply (gasoline and diesel). Our decision was based mainly on the state's undertaking, as required by Israeli and international law, to monitor the situation in the Gaza Strip and ensure that the aforesaid reduction is not detrimental to the humanitarian needs of the inhabitants of the Gaza Strip. In those circumstances we concluded our discussion of the issue of the restrictions on the fuel supply to the Gaza Strip, and proceeded to examine the arguments relating to the anticipated harm to the inhabitants of the Gaza Strip as a result of the restrictions on the supply of electricity.

Reduction of the supply of electricity to the Gaza Strip

5.  The hearing of that part of the petition that dealt with the reduction of the supply of electricity to the Gaza Strip required complex factual verification, and we encountered difficulty in obtaining figures on this issue from the state's representatives. Therefore the proceedings on this issue were drawn out while on various dates we received detailed applications from the petitioners and written and oral responses from the respondents. On 15 November 2007 the petitioners filed an urgent application for an interim order in the petition, and on 23 November 2007 they applied for an urgent hearing of the petition in view of the state's notice that as of December 2007 it would begin to restrict the amount of electricity supplied to the Gaza Strip. The petitioners argued that it is physically impossible to reduce the electricity supply to the Gaza Strip without causing power stoppages in hospitals and interrupting the pumping of clean water to the civilian population in Gaza, and without causing serious disruption to basic needs. Their main argument was that implementation of the decision would cause certain, serious and irreversible damage to the essential humanitarian needs of the Gaza Strip, its hospitals, the water and sewage system, and the entire civilian population.

6.  According to figures that are not disputed by either party, the amount of electricity needed for the Gaza Strip at peak times is slightly more than 200 megawatts. Approximately 120 megawatts are supplied by Israel, and approximately 17 megawatts are supplied by Egypt. The remainder is supplied by the Gaza Strip power plant. Electricity is supplied to the Gaza Strip by the State of Israel via ten power lines, on four of which load limiting devices have been installed. The respondents' intention was to gradually reduce the supply of electricity through those four power lines, by a total of 5% of the amount of electricity transferred through each of the lines. The respondents claimed that this step would obligate the authority controlling the Gaza Strip to manage the load and reduce the actual consumption of electricity in the area to which the relevant line supplies electricity, and to prevent the supply of electricity for terrorist purposes such as workshops in which Qassam rockets are made. According to the respondents, if the authorities in Gaza would manage the consumption of electricity properly, the flow of electricity from Israel to the Gaza Strip could be expected to continue uninterrupted. But if consumption exceeds the permitted amount, the supply of electricity will cease automatically, due to the load limiting devices installed upon the four power lines described above. The respondents emphasized in their response that the aforesaid reduction of electricity is not detrimental to the basic humanitarian needs of the residents of the Gaza Strip.

7.  The petitioners argue that there is no physical way of reducing the supply of electricity to Gaza without causing power stoppages in hospitals and interruptions in the pumping of clean water to the civilian population of Gaza; consequently, the implementation of this decision will cause certain, serious and irreversible harm to the vital humanitarian needs of the Gaza Strip, its hospitals, the water and sewage systems, and the entire civilian population. In their supplementary pleadings of 27 November 2007, the petitioners presented detailed arguments regarding the future reduction of electricity to the Gaza Strip. According to the petitioners, even at this stage, since the bombing of the local power plant by the Israeli Air Force in 2006, the Gaza Strip has suffered from a shortage of electricity that compels the Electricity Distribution Company in Gaza to introduce electricity stoppages for several hours each day. They argue that even now the frequent power stoppages affect the functioning of essential services in Gaza, such as hospitals, because the infrastructure in the Gaza Strip does not allow for the disconnection of the electricity supply to the civilian population without disconnecting essential services. Moreover, it was emphasized that withholding the supply of electricity from the homes of Gaza residents denies them the possibility of receiving clean drinking water in their homes and disrupts the functioning of the water and sewage pumps.

8.  At a hearing on the petition held on 29 November 2007 we heard the arguments of the parties. In the course of the hearing we also heard the respondents' deponents, Col. Shlomi Muchtar, head of the Operations Department of the Unit for Coordination of Government Activities in the Territories, and Mr Idan Weinstock, Director of the Electricity Authority at the Ministry of National Infrastructures. For the petitioners we heard the second petitioner, Mr Maher Najar, Deputy-Director of the Water Authority in the Coastal Cities Administration in Gaza. After hearing the arguments of the parties and their deponents regarding the planned reduction of the electricity supply to the Gaza Strip, and after receiving the incomplete facts that were presented to us, we decided to request further pleadings from the respondents on several points concerning the possibility of regulating the flow of electricity to the Gaza Strip so that humanitarian needs will not be harmed. We also issued an order to the effect that until the aforesaid submissions were received, the plan to reduce the electricity supply to the Gaza Strip would not be implemented.

9.  While the petition was pending, the petitioners once again filed applications to compel the state to continue the regular supply of electricity to the Gaza Strip without restrictions. Their arguments focused mainly on the fact that the local power plant, which supplies electricity to essential humanitarian facilities, cannot function properly due to a severe shortage of industrial diesel fuel. They argue that the amount of industrial diesel that the respondents are allowing to enter the Gaza Strip is insufficient for the needs of the power plant and does not allow it to produce the amount of electricity required by the residents of the Gaza Strip during the winter months. It was argued that the shortage of industrial diesel caused a reduction of approximately 30% in the amount of electricity produced by the power plant in the Gaza Strip, which has led to long electricity stoppages. It was emphasized that the industrial diesel supplied to the Gaza Strip is used solely for producing electricity at the power plant. On 9 January 2008 the petitioners filed an update, in which they said that as a result of the severe shortage of industrial diesel at the power plant in the Gaza Strip, power stoppages of eight hours every day were being imposed in central Gaza, and in the city of Gaza itself stoppages were being imposed for eight hours every two days. It was further alleged that as a result of the reduction in electricity production, the central hospital in Gaza was suffering power stoppages of six to twelve hours each day, which disrupted the functioning of the hospital. On 21 January 2008 the petitioners informed the court that due to the shortage of industrial diesel, the power plant in Gaza had stopped the production of electricity entirely, which resulted in a shortage of approximately 43% of the amount of electricity required by the residents of the Gaza Strip. They claimed that on 20 January 2008 the respondents imposed a total ban on the entry of industrial diesel into the Gaza Strip, and in the absence of reserves this led to the shutdown of the power plant. In the prevailing circumstances, the petitioners claimed that many residents of the Gaza Strip had no access to clean drinking water, sewage was overflowing and residents who so required were unable to operate various items of medical equipment in their homes.

10.  In the wake of the aforesaid, the respondents filed a further statement, in which they addressed the various claims and the ongoing changes in the factual position. They said that at a meeting between the Head of the Operations Department of the Unit for Coordination of Government Activity in the Territories, Col. Shlomi Muchtar, and the representatives of the Palestinian Energy Authority, the Palestinians had said that they were able to regulate loads by reducing the consumption of electricity in the distribution area of a certain line, and that such regulation had already been activated; thus, for example, the Palestinian authorities confirmed that they were able to reduce the consumption on a particular power line in order to allow the proper functioning of a hospital. We were also informed that as a result of an arrangement between the Israel Electric Corporation and the Palestinian Authority in 2005, the supply of electricity through two of the lines providing electricity from Israel to the Gaza Strip was limited to eleven megawatts. The respondents admitted that the Nachal Oz crossing, through which the industrial diesel fuel needed to run the Gaza power plant enters the Gaza Strip, had indeed been closed for several days, and therefore the supply of industrial diesel to the power plant in the Gaza Strip had been withheld during those days. The respondents explained that the closure of the crossing and the stoppage in the supply of industrial diesel to the power plant occurred as a result of a very serious rocket barrage against Israel from the fifteenth and eighteenth of January 2008, during which 222 mortar shells had been fired at Israeli towns near the Gaza Strip, Ashkelon and Sederot, causing the wounding of seven civilians, many victims of trauma and considerable damage. Despite that, we were told that it has now been decided that the amount of industrial diesel supplied to the Gaza Strip will be set at 2.2 million litres a week, as it was before the reduction plan. Regarding the supply of electricity from Israel, the respondents said that they intend to implement a gradual reduction in only three power lines, in an amount of 5% of the total current in each of those lines, so that the amount of electricity supplied through them will total 13.5 megawatts in two of them and 12.5 megawatts in the third. The respondents emphasized in this context that the Palestinians themselves have said on several occasions that they are able to carry out load reductions if restrictions are imposed on the power lines, so that humanitarian purposes and needs are not affected. Finally, the respondents said that the opening of the Rafah crossing into Egypt, which was an action taken unilaterally by the Palestinians, is likely to affect the entire situation in the Gaza Strip and all of the obligations of the State of Israel towards the Gaza Strip, but they added that this is a new development and the matter is being examined from a factual, legal and political perspective. On 27 January 2008 we held a hearing that focused on the supply of industrial diesel fuel to the Gaza Strip, at which the parties reiterated their main arguments, as set out above, and the state announced, as aforesaid, that industrial diesel fuel was being supplied to the Gaza Strip in the same format as it had in the past.

Deliberations

11.  The question confronting us is whether the various restrictions upon the supply of fuel and electricity to the Gaza Strip harm the essential humanitarian needs of the residents of the Gaza Strip. As we said in our decision of 29 November 2007, the State of Israel is under no obligation to allow an unlimited amount of electricity and fuel to enter the Gaza Strip in circumstances in which some of these commodities are in practice being used by the terrorist organizations in order to attack Israeli civilians. The duty of the State of Israel derives from the essential humanitarian needs of the inhabitants of the Gaza Strip. The respondents are required to discharge their obligations under international humanitarian law, which requires them to allow the Gaza Strip to receive only what is needed in order to provide the essential humanitarian needs of the civilian population.

12.  The State argued before us that it acts in accordance with the rules of international law and fulfils its humanitarian obligations under the laws of war. Counsel for the state argues that these obligations are limited, and they are derived from the state of armed conflict that exists between the State of Israel and the Hamas organization that controls the Gaza Strip, and from the need to avoid harm to the civilian population that finds itself in the combat zone. We should point out in this context that since September 2005 Israel no longer has effective control over what happens in the Gaza Strip. Military rule that applied in the past in this territory came to an end by a decision of the government, and Israeli soldiers are no longer stationed in the territory on a permanent basis, nor are they in charge of what happens there. In these circumstances, the State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the laws of belligerent occupation in international law. Neither does Israel have any effective capability, in its present position, of enforcing order and managing civilian life in the Gaza Strip. In the prevailing circumstances, the main obligations of the State of Israel relating to the residents of the Gaza Strip derive from the state of armed conflict that exists between it and the Hamas organization that controls the Gaza Strip; these obligations also derive from the degree of control exercised by the State of Israel over the border crossings between it and the Gaza Strip, as well as from the relationship that was created between Israel and the territory of the Gaza Strip after the years of Israeli military rule in the territory, as a result of which the Gaza Strip is currently almost completely dependent upon the supply of electricity from Israel.

13.  In this context, the respondents referred in their pleadings to various provisions of international humanitarian law that apply to this case. Inter alia, the respondents referred to art. 23 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: "the Fourth Geneva Convention"), which requires a party to a conflict to allow the free passage of consignments intended for the civilians of the other party. They said, however, that this is a very limited obligation, since it only requires a party to a conflict to allow the unlimited passage of medical equipment, and to allow the passage of foodstuffs, clothing and medicine intended for children under the age of fifteen and pregnant women. The respondents also referred to art. 70 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, 1977 (hereinafter: ''the First Protocol"), which in their opinion constitutes customary international law, and which imposes a general and broader obligation whereby parties to a conflict are required to allow the rapid and unimpeded passage of essential goods for the civilian population. Finally, the respondents also referred in their pleadings to art. 54 of the First Protocol, which prohibits the starvation of civilians as a method of warfare, as well as any attack, destruction, removal or rendering useless of installations required by the civilian population, including foodstuffs, agricultural areas and drinking water installations.

14.  The state's pleadings in this regard are based upon norms that are part of customary international law, which set out basic obligations that govern combatants engaged armed conflict, and require them to ensure the welfare of the civilian population and respect its dignity and basic rights. It should also be noted that under the rules of customary international humanitarian law, each party to a conflict is obliged to refrain from disrupting the passage of basic humanitarian relief to populations in need of such relief in areas under its control (J. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law (ICRC, vol. 1, 2005), at pp. 197, 199). In the commentary to art. 70 of the First Protocol, too, it is stated that arts. 54 and 70 of the First Protocol should be read together, to the effect that a party to a conflict may not refuse to allow the passage of foodstuffs and basic humanitarian equipment necessary for the survival of the civilian population (Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Y. Sandoz, C. Swinarski, B. Zimmermann, eds., (ICRC, Geneva, 1987), at p. 820).

15.  It transpires from the aforesaid that the respondents do not in any way deny the existence of their humanitarian obligations, which require the State of Israel to allow the passage of essential humanitarian goods to the Gaza Strip, and to refrain from deliberately inflicting damage on humanitarian facilities. According to the respondents' arguments, which they supported with affidavits and statements of the responsible authorities, not only are the respondents allowing the transfer essential goods to the civilian population in the Gaza Strip, but they also regard this as a humanitarian obligation for which they are liable pursuant to international law and to a cabinet  decision. The respondents emphasized, however, that this does not require them to allow the passage of non-essential goods or of goods in amounts that exceed what is required for basic humanitarian needs: this is the core of the disagreement between them and the petitioners.

16.  In this last respect, Col. Nir Press, the commander of the Coordination and Liaison Authority, appeared before us during the final hearing and supplied details of the relevant data and information upon which the respondents rely. Col. Press clarified the statements made on behalf of the state, and insisted that the amount of fuel and electricity entering the Gaza Strip is sufficient for the proper functioning of all the humanitarian services in the territory; Col. Press further told us of contact that he made with Palestinian representatives for the routine monitoring of the functioning of the humanitarian services in the Gaza Strip. Inter alia, he described how the State of Israel allows the safe conduct of the sick for treatment in the State of Israel, and the unrestricted passage of food and medicine, in order to avoid harming the residents of the Gaza Strip beyond the extent necessitated by the state of armed conflict between the State of Israel and the Hamas organization. Col. Press admitted to us that the situation of the civilian population in the Gaza Strip is indeed difficult, but he also gave examples of exaggerated descriptions published by the Hamas organization regarding a humanitarian crisis in the region.

17.  The main issue remaining before us, as became clear from the last hearing, is the amount of industrial diesel fuel required for the operation of the power plant in the Gaza Strip. As stated above, we were convinced by the respondents' declarations that they intend to continue to allow the supply of industrial diesel fuel at the same level as prior to the implementation of the reductions, namely 2.2 million litres per week. Since it has been clarified that industrial diesel can be, and is in fact, used solely for the power plant in the Gaza Strip, it can be assumed that the supply of industrial diesel will not fall short of this amount. Our enquiry into the matter revealed that the supply of industrial diesel to the Gaza Strip during the winter months last year was similar to the amount that the respondents promise to allow into the Gaza Strip at present, and this fact, too, indicates that it is a reasonable amount that is sufficient for the basic humanitarian needs of the Gaza Strip. Admittedly, for several days the border crossings were closed and consequently the required amount of diesel was not delivered, but as we explained, this was due to a temporary security need caused by a very fierce rocket attack launched against Israeli towns from within the Gaza Strip. Needless to say  that even during this period, when there was a specific security need to close the border crossings, the State of Israel continued to supply the Gaza Strip with the same amount of electricity that it usually provides.

18.  As for the revised plan presented to us, which concerns a five per cent reduction of the supply of electricity through three of the ten power lines supplying electricity to the Gaza Strip, to a level of 13.5 megawatts in two of the lines and 12.5 megawatts in the third, we are convinced that this reduction does not breach the State of Israel's humanitarian obligations within the context of the armed conflict taking place between it and the Hamas organization that controls the Gaza Strip. This conclusion is based, inter alia, upon the fact that the respondents' deposition reveals that the relevant Palestinian authorities have said that they have the capability of carrying out load reductions if limits are placed on the power lines, and they have made actual use of this capability in the past.

19.  It should be emphasized that during the hearing of the petition the state reiterated its undertaking to monitor the humanitarian situation in the Gaza Strip, and in this context we were informed, in various affidavits filed on behalf of the respondents, that this commitment is being discharged very responsibly and seriously, and that the security establishment carries out a weekly assessment of the position in this regard, which is based, inter alia, upon contacts with Palestinian authorities in the fields of electricity and health, and on contacts with international organizations. It should be noted in this context that from the hearing of this issue before us, as well as from other cases in which an immediate response was required on matters regarding humanitarian concerns, it became clear that the parties are capable of reaching understandings and arrangements in these matters. Indeed, a solution in the form of communication between persons designated by the security establishment and those entities who maintain contact with them and inform them of the essential basic needs is the best way of finding speedy solutions to concrete problems that arise from time to time; that is evident from the fact that even before the matter came to court, the state announced, of its own initiative, that it was renewing the supply of regular diesel fuel, which is required, inter alia, for ambulances and operating generators in hospitals, in the same amount as prior to the reduction, as well as the supply of industrial diesel. These facts show that the state is indeed monitoring the situation in the Gaza Strip, and allowing the supply of the amount of fuel and electricity needed for the essential humanitarian needs in the region.

20.  We have said on more than one occasion that we do not intervene in the question of the effectiveness or the wisdom of the security measures adopted by those responsible for security, but only in the question of their legality. Our role is limited to judicial review of compliance with the provisions of Israeli and international law that bind the State of Israel, which, according to the declaration of the respondents, are being scrupulously observed by the state. In this regard it has been said in the past that in times of war legal norms continue to apply, and the laws of war should be observed. In HCJ 3451/02 Almadani v. Minister of Defence [1] we held, in a similar context, that:

'Israel finds itself in severe combat with rampant terrorism. Israel acts pursuant to its right to self-defence (see art. 51 of the Charter of the United Nations). This combat is not conducted in a normative void. It is conducted pursuant to the rules of international law, which determines principles and rules for conduct of combat' (Almadani v. Minister of Defence [1], per President Barak; see also HCJ 168/91 Morcus v. Minister of Defence [2], at p. 470).

And in a judgment concerning the humanitarian obligations of the State of Israel during the combat operations carried out in the 'Defensive Shield' campaign, we said:

'Even during periods of combat the laws of war should be upheld. Everything should be done in order to protect the civilian population (see HCJ 2901/02 Center for the Defense of the Individual v. Commander of the IDF Forces in the West Bank [5]; HCJ 2936/02 Physicians for Human Rights v. Commander of the IDF Forces in the West Bank  [6] ; HCJ 2977/02  Adalah - Legal Center for Arab Minority Rights in Israel v. Commander of the IDF Forces in the West Bank [7]; HCJ 3022/02 LAW - Palestinian Organization for the Defence of Human Rights and the Environment v. Commander of the IDF Forces in the West Bank [8])' (HCJ 3114/02 Barakeh v. Minister of Defence [3] ).

21.  Indeed, in times of war, as in our case, the civilian population unfortunately finds itself in a combat zone, and it is the first and main victim of the state of hostilities, even when efforts are made to limit the harm caused to it. In the territory of the State of Israel too, in an era of terrorist attacks that have been continuing for years, the immediate and main victim of the state of hostilities is the civilian population. But as far as the acts perpetrated against Israel are concerned - this is not accidental harm or collateral damage, but frequent terrorist attacks that directly target the civilian population with the intention of harming innocent civilians. This is the difference between the State of Israel, a democratic state fighting for its survival by the means that the law provides, and the terrorist organizations that seek to destroy it:

'The state is fighting in the name of the law and in order to preserve it. The terrorists fight against the law and in violation thereof. The war against terrorism is also the struggle of the law against those who seek to undermine it' (HCJ 320/80 Kawasma v. Minister of Defence [4], at p. 132; see also Almadani v. Minister of Defence [1]).

In this case, the facts that were presented to us, as set out above, show that the State of Israel accepts and respects the rules prescribed in the laws of war, and it is committed to continuing to supply the amount of fuel and electricity needed for the essential humanitarian needs of the civilian population in the Gaza Strip.

22.  In conclusion, we reiterate that the Gaza Strip is controlled by a murderous terrorist organization, which acts relentlessly to inflict harm on the State of Israel and its inhabitants, violating every possible rule of international law in its violent acts, which are directed indiscriminately at civilians - men, women and children. Despite this, as we said above, the State of Israel is committed to fighting the terrorist organizations within the framework of the law and in accordance with the provisions of international law, and to refrain from intentional harm to the civilian population in the Gaza Strip. In view of all of the information presented to us with regard to the supply of electricity to the Gaza Strip, we are of the opinion that the amount of industrial diesel that the State said it intends to supply, as well as the electricity that is continually supplied through the power lines from Israel, are capable of satisfying the essential humanitarian needs of the Gaza Strip at the present.

Therefore, for the reasons set out above, the petition is denied.

Justice E. Hayut

I agree.

Justice J. Elon

I agree.

Petition denied.

23 Shevat 5768

30 January 2008

H.C.J 155/53

 

           

SALEM AHMED KIWAAN

v.

MINISTER OF DEFENSE AND OTHERS

 

           

In the Supreme Court sitting as the High Court of Justice

[March 9,1954]

Before Cheshin J., Goitein J., and Berinson J.

 

 

Nationality - Nationality Law, 1952, s. 3(a) - When nationality acquired - Petitioner forced to leave country as result of enemy action - Lawful return - Identity card - Whether holder entitled to remain in country - Deportation order set aside.

 

            An order of deportation was issued against the petitioner who had lived in Palestine and who in the year 1948 had been registered in the Register of Inhabitants. He had been compelled in 1949 to leave the country as a result of army action and had lived for a while in a neighbouring Arab country. He returned to Israel without permission and as a result of subsequent court proceedings was held to be entitled to receive and did receive an identity card. The petitioner now contended that as he was the holder of an identity card and had become an Israel national in terms of S. 3(a) of the Nationality Law 19521⁾ the deportation order was illegal.

               

Held : that the mere possession of an Identity Card did not give the holder a right to stay in the country ;

that the petitioner was entitled to be regarded as an Israel national having satisfied the conditions of S. 3(a) of the Nationality Law and as such could not be deported.

 

Israel cases referred to:

 

(1)   H.C. 8/52, Mustafa Saad Bader v. Minister of the Interior and Others; (1953), 7 P.D. 366.

(2)        H.C. 227/52, Jamil El-Khalil v. Minister of Police and Others; (1953), 7 P.D. 49.

(3)   H.C. 145/51, Sabri Hassan Moustafa Abou Rass and Others v. Military Governor of Galilee and Others; (1951), 5 P.D. 1476.

(4)   H.C. 138/51, Ahmed El-Taha and Others v. Minister of the Interior and Others; (1953), 7 P.D. 160.

 

Nakkara and Wachsman for the petitioner.

Kwart, Deputy State Attorney, for the respondents.

 

 

CHESHIN J. (giving the judgment of the court). The subject of the proceedings before us is an order nisi dated July 29, 1953, calling upon the Minister of Defense, the first respondent, to show cause why a deportation order made against the petitioner should not be set aside. The reply filed on behalf of the fourth respondent, the Inspector of Police of the Zevulun Division, Acre, who was authorized to execute the order referred to, confines itself mainly to points of law. It is submitted that the deportation order, which was made in accordance with section 10(1)(f) of the Immigration Ordinance, was lawfully made. It is also contended that the arguments advanced by the petitioner should not be entertained since he is not an Israel national, and that the identity card issued to him does not in itself confer upon him the right of residence in this country.

 

2. Before dealing with the merits of the petition we shall state some of the important facts which are not in dispute. The petitioner does not deny that he lived for some time beyond the borders of the State - in one of the neighbouring Arab countries - at the beginning of 1949, and that he returned to Israel without having obtained permission to do so. He contends, however, that he was expelled from the country by force and that his short stay outside the country, therefore, was the result of compulsion. He submits that as the conditions entitling him to nationality have been fulfilled, he may not again be deported from the country. Counsel for the respondents admits that the petitioner was already registered in the Register of Inhabitants in 1948 and that as a result of previous proceedings in this court, the petitioner was given an identity card. Counsel submits, however, that the issue to a person of an identity card does not in itself entitle him to reside in the country, and that the authorities are entitled to deport any person who is not a citizen of the State on the grounds laid down by law.

 

            The decisive question which arises in these proceedings, therefore, is the status of the petitioner from the point of view of nationality, and in regard to this question opinion is divided.

           

3. Israel nationality is acquired in one of the ways set forth in the Nationality Law, 1952, that is to say by return1⁾ (section 2 of the Law), by residence in Israel (section 3), by birth (section 4) and by naturalisation (sections 5-9). It is not disputed that three of the four ways mentioned do not apply to the petitioner, and that his status must be tested in the light of those provisions which entitle a person to be regarded as a national under section 3(a) of the Law, namely by residence in Israel. This section, in so far as it applies to the matter before us, provides as follows:

 

"3(a) A person who, immediately before the establishment of the State, was a Palestine citizen... shall become an Israel national with effect from the day of the establishment of the State if -

 

(1)         he was registered on March l, 1952, as an inhabitant under the Registration of Inhabitants Ordinance, 1949;

(2)         he was an inhabitant of Israel on the day of the coming into force of this Law;

(3)         he was in Israel ...from the day of the establishment of the State to the day of the coming into force of this Law, or entered Israel legally during that period."

 

            As I have already said, it is admitted by counsel for the respondents that the petitioner is deemed to have been registered as an inhabitant under the Registration of Inhabitants Ordinance from the year 1948, that is to say, that the first of the conditions mentioned has been fulfilled in regard to the petitioner. The petitioner contends in his affidavit that he was a Palestine national immediately before the establishment of the State and that on July 14, 1952, - the day of the coming into force of the Nationality Law - he was a resident of Israel. These facts were not denied by the respondents in the only affidavit filed on their behalf - or, more accurately, on behalf of the fourth respondent - and we must assume, therefore, that these conditions too have been fulfilled in regard to the petitioner. The only question that remains, therefore, is whether the last condition mentioned in the Law has been satisfied, namely, whether he was in Israel or entered Israel legally during the period from the day of the establishment of the State (May 14, 1948) to the day of the coming into force of the Nationality Law (July 14, 1952).

           

4. As I have said, the petitioner admits that he was beyond the borders of the State - in one of the neighbouring Arab countries - for a short time in January, 1949, but he contends that he was driven there forcibly and unlawfully by the army. This allegation is denied by counsel for the respondents according to whom the petitioner originally left his village willingly and was only subsequently captured by the army and expelled after he had returned to the village without permission. It follows that it is of the utmost importance in these proceedings to determine the exact facts, for if the petitioner was indeed expelled from the country unlawfully, then his enforced residence outside the country and his return thereto - even without permission - were lawful. These principles have been laid down by this court on a number of occasions and have become firmly entrenched in the law of this country. It is sufficient to refer to Bader v. Minister of the Interior (1), and El-Khalil v. Minister of Police (2). It was said in Bader's case, at page 373:

 

            "It has been emphasised time and again by this Court that a person who has been unlawfully expelled from the country is entitled to return without permission. Such a person is deemed never to have left the country and he therefore requires no entry permit in order to return to it".

           

and in the case of El-Khalil (2), it was said (at page 51):

 

            "In a number of decisions dealing with identity cards it has been laid down by this court that, in regard to residents of Israel, the authorities may not rely upon unlawful entry into the country where such entry follows upon the unlawful expulsion of such residents from the country by the authorities."

           

5. Counsel for the petitioner submitted in the course of his argument that since as a rule the authorities only issue an identity card to a person who entered the country legally and who is permitted to reside therein, the very fact that an identity card was issued to the petitioner shows that he did not leave the country willingly, and that his residence therein is lawful. We cannot accept this argument. An identity card is not a talisman against deportation from the country and the possession of such a card does not indicate lawful entry into the country or lawful residence therein. The opinion has already been expressed in the case of Abou Rass v. Military Govenlor of Galilee (3), at page 1478, that the Registration of Inhabitants Ordinance confers no special rights upon a person who is registered under its provisions - except, of course, the right to receive an identity card, and that in view of the very wide definition in that Ordinance of the expression "inhabitant" it cannot be maintained with certainty that the Ordinance was intended to refer to lawful residents alone. It follows, therefore, that an identity card cannot always be regarded as a permit of residence. It has indeed often been argued before us in this court that the authorities do not usually deport a person who holds an identity card. This, however, refers only to administrative practice, which is not decisive in interpreting the law. The matter before us proves that even the administrative authorities do not regard themselves as bound by the custom alleged, for in one of the deportation orders made against the petitioner the Minister of Defense says quite clearly that "I have considered the fact that the person mentioned (that is to say, the petitioner) is the holder today of an identity card but I nevertheless order his deportation...".

 

            In short, the very fact that the petitioner holds an identity card does not in itself invalidate the deportation order against him. Even this, however, does not bring us to a final conclusion, for in the circumstances of this case it is of great importance to ascertain how the petitioner came to receive an identity card. It is desirable therefore at this stage to review shortly the previous proceedings which were conducted in this court between the petitioner and the respondents, other than the first respondent.

           

6. The petitioner has already been deported by the authorities on a number of occasions and has been accustomed to return to the country after such deportations without permission. In 1952, when the authorities sought to deport him for the third or fourth time, he applied to this court1⁾ for an order directing the Minister of the Interior - the second respondent - to issue him an identity card, and preventing his deportation from the country. A number of facts, inter alia, which were set out then by the petitioner in his application have been repeated and relied upon by him in these proceedings, namely, that he was resident in his village at the time of its capture by the Defense Army of Israel on October 30, 1948; that he was registered in the Register of Inhabitants on December 12, 1948; that he was expelled by the army on January 14, 1949, and that in these circumstances he should not be deported but should be given an identity card.

            All these allegations of fact were denied by the representatives of the Minister of the Interior in the affidavit which was then filed on his behalf, and on the return to the order nisi the court entered upon the merits of the matter in order to discover where the truth lay, and to ascertain the facts. The court, however, did not proceed far along this road, for at the conclusion of the cross-examination of the petitioner on his affidavit counsel for the respondents made a declaration before the court that "in view of the decision of this court in El-Taha v. Minister of the Interior (4)," he had no objection to the order nisi being made absolute. The court then acted on the basis of this declaration, made the order absolute, and an identity card was issued to the petitioner on the strength of the order of the court.

           

            We now turn to examine the decision of the court in El-Taha's case (4), and to ascertain what moved counsel for the authorities to withdraw his opposition to the issue of an identity card to the petitioner.

           

7. In El-Taha's case, a number of Arab residents of the village of Majd-al-Kroum in Western Galilee petitioned this court and submitted that they were entitled to receive identity cards and not to be deported from Israel by reason of the following facts: they were in their village, Majd-al-Kroum, on the day of its capture by the Defense Army of Israel, and a short time after they were registered in the Register of Inhabitants. In the middle of January, 1949, a unit of the army arrived at the village, arrested some 400 of its residents, including the petitioners, and transferred them across the borders of the State. At the end of January, 1949, the petitioners returned to their village but they were again expelled from the country, and again returned to it without obtaining permission. The representatives of the Minister of the Interior denied these allegations in their reply to the order nisi which had been granted on the petition of the Arabs referred to. They insisted that the petitioners had left the State of their own free will and had thereafter infiltrated into the country. The court, however, after hearing evidence and argument, accepted the version of the petitioners - the Arab residents of Majd-al-Kroum - and held that they had been unlawfully expelled from the country. It was for this reason that the court made an order that identity cards be issued to the petitioners in that case.

 

            This is the background against which the proceedings in El-Taha's case were conducted, and "in view of" the decision that was given in those proceedings - to use counsel's expression in the previous proceedings between the petitioner and the authorities in H.C. 81/52 - he withdrew his opposition to the issue of an identity card to the petitioner. We must now ascertain the connection between the petitioner before us and the petitioners in El-Taha's case, and the relationship between the decision that was given by the court in that case and the prayer of the petitioner in H.C. 81/52 to be given an identity card. The answer is a very simple one: the petitioner - according to his submission - is one of those very 400 Arabs who were once forcibly driven from the village of Madj-al-Kroum by the army. He made this submission, as I have said, in his first petition which was dealt with in H.C. 81/52, and counsel for the authorities then denied these allegations. However, in the course of the proceedings in H.C. 81/52 the decision was given in El-Taha's case. It was because of that decision that counsel for the respondents found it proper to withdraw his opposition to the issue of an identity card to the petitioner. What is the interpretation of that withdrawal in these circumstances, and what is the meaning of the court order which was given upon the basis of that withdrawal? The reply is that the authorities recognised the justice of the contention that the petitioner - as the petitioners in El-Taha's case - had been forcibly driven from the State, and that for that reason - and for that reason alone - he was entitled after his return to demand and receive an identity card. It follows that the identity card was not issued to the petitioner without consideration of the intrinsic factors involved, but after proceedings in court in which the merits of the case were considered. The decision of this court directing the authorities to issue an identity card to the petitioner, was based upon the consent of counsel for the authorities, and was given in the light of the decision in El-Taha's case. The court thereby recognised the correctness of the petitioner's submission and of his status as a resident of Israel, or as a person who had entered Israel lawfully. That was a decision in rem, since it determined the status of the petitioner as a lawful resident of the State. This decision binds the authorities and the court in the proceedings now before us. The authorities are now estopped from contending that the entry of the petitioner into Israel was unlawful, or that his leaving the country before that was of his own free will and without obtaining permission. For this reason the court is now obliged to hold that the third condition, too, of the conditions entitling a person to be regarded as a national of the State by reason of his residence therein, in accordance with section 3(a) of the Nationality Law, has been fulfilled by the petitioner.

 

            As has been said counsel for the respondents does not deny - and at the conclusion of his argument he explicitly admitted - that the petitioner may not be deported if it be held that he is a national of the State.

           

            It is decided, therefore, to make the order nisi granted on July 29, 1953, absolute.

 

 

            Order nisi made absolute.

Judgment given on March 9,1954.

 

 

 

 

HCJ 9441/07

Mahmad Mesbah Taa Agbar

v.

1.         IDF Commander in Judaea and Samaria

2.         Military Appeals Court

3.         General Security Service

4.         Military Prosecutor

HCJ 9454/07

Tariq Yusuf Nasser Abu Matar

v.

1.         IDF Commander in Judaea and Samaria

2.         Military Appeals Court

3.         General Security Service

4.         Military Prosecutor

 

 

The Supreme Court sitting as the High Court of Justice

[20 December 2007]

Before Justices E.E. Levy, E. Rubinstein, Y. Danziger

 

 

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

 

Facts: In 2007, an administrative detention order was made against the petitioner in HCJ 9441/07 on the ground that he was active in the Hamas organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for an additional period of  six months.

In 2006, an administrative detention order was made against the petitioner in HCJ 9454/07 on the ground that he was active in the Popular Front terrorist organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for two further periods of six months.

The petitioners claimed that there was no evidence to show they presented a threat to security. The respondents argued, on the basis of privileged evidence, that the two petitioners did indeed present a threat to security.

 

Held: The main difficulty in administrative detention cases is that much of the evidence is privileged, because of the concern of revealing sources and intelligence methods and witnesses’ fears with regard to appearing in court. The risks in these contexts are real. A detainee does not have a proper and complete opportunity of defending himself against what is alleged against him; he is not shown most of the evidence, he cannot examine it and he is unable to conduct a cross-examination. This requires the court to be especially careful and to examine the evidence brought before it very carefully. When doing so, the court should regard itself as being a  ‘temporary defence counsel.’

Administrative detention is the last resort. Because of the manifestly problematic nature of administrative detention, every effort should be made to bring the detainee to a criminal trial.

In the specific cases, the evidence against the petitioners was sufficiently serious to justify their continued detention.

 

Petition denied.

 

Legislation cited:

Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (no. 1226), 5748-1988.

Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (Amendment no. 30) (no. 1555), 5765-2005, ss. 4(b), 6(a).

Defence (Emergency) Regulations, 1945.

Emergency Powers (Detentions) Law, 5739-1979, ss. 2, 2(a), 2(b), 4, 4(c) 5, 6, 7.

Law and Admininstration Ordinance, 5708-1948, s. 9.

 

Israeli Supreme Court cases cited:

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

[2]      ADA 2/82 Lerner v. Minister of Defence [1988] IsrSC 42(3) 529.

[3]      ADA 1/88 Agbariyeh v. State of Israel [1988] IsrSC 42(1) 840.

[4]      HCJ 5784/03 Salama v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(6) 721; [2002-3] IsrSC 289.

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

[6]      ADA 1/82 Kawasmah  v. Minister of Defence [1982] IsrSC 36(1) 666.

[7]      ADA 2/86 A v. Minister of Defence [1987] IsrSC 41(2) 508.

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

[9]      ADA 4794/05 Ofan v. Minister of Defence (unreported).

[10]    HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [1992] IsrSC 52(3) 346.

[11]    CrimA 889/96 Mazrib v. State of Israel [1997] IsrSC 51(1) 433.

[12]    ADA 6183/06 Gruner v. Minister of Defence (unreported).

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

[14]    HCJ 5555/05 Federman v. Central Commander [2005] IsrSC 59(2) 865.

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

[16]    HCJ 297/82 Berger v. Minister of Interior [1983] IsrSC 37(3) 29.

[17]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[18]    HCJ 1546/06 Gezawi v. IDF Commander in West Bank (unreported).

[19]    HCJ 3722/06 Gitt v. IDF Commander in West Bank (unreported).

[20]    HCJ 5287/06 Zatri v. Military Prosecutor (unreported).

[21]    HCJ 2233/07 A v. IDF Commander in Judaea and Samaria (unreported).

 

American cases cited:

[22]    Rasul v. Bush, 542 U.S. 466 (2004).

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

 

English case cited:

[24]    R (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58 (decision of 13 December 2007).

 

Jewish law sources cited:

[25]    Babylonian Talmud, Sanhedrin 6b.

 

For the petitioner in HCJ 9441/07 — J. Boulus.

For the petitioner in HCJ 9454/07 — R. Mahagna.

For the first respondent — I. Amir.

 

 

JUDGMENT

 

 

Justice E. Rubinstein

Background and proceedings

1.    These are two petitions in which the petitioners are petitioning the court to order that the administrative detention orders made against them be set aside. The petitions were heard on the same day and give rise to similar questions, so this judgment is being given in respect of both petitions.

(a) The petitioner in HCJ 9441/07 (hereafter: the first petitioner), who was born in 1973, was detained on 29 March 2007, for six months, on the ground that he is active in the Hamas organization and is involved in activity that supports terrorism. On 5 April 2007 the order and the term stipulated therein  were approved by a Military Court judge (ADC (JS) 1729/07). The decision states:

‘I have been shown reliable,  quality, and updated intelligence information that indicates a definite risk to the security of the territory should the detainee be released, and the involvement of the detainee in current activity that endangers the security of the territory and the security of the public.’

The first petitioner’s appeal against this decision was denied by the Military Appeals Court in the territory of Judaea and Samaria on 9 May 2007 (ADA 2252/07). On 7 September the administrative detention was extended until 6 March 2008. On 9 September 2007 the detention order was approved (ADC (JS) 3077/07) and on 29 October 2007 the petitioner’s appeal against that decision was denied (ADA 3733/07).

(b) The petitioner in HCJ 9454/07 (hereafter: the second petitioner), who was born in 1989, was arrested on 15 September 2006 on the grounds of being active in the Popular Front terrorist organization. On 20 September 2006 an administrative detention order was issued against him for six months, and this was extended from time to time. On 10 September 2007 the military commander in the territory extended the administrative detention order until 13 March 2008. On 18 September 2007 the order and the term stipulated therein were approved (ADC (JS) 3138/07). In the decision the judge said that —

‘I have been shown quality, updated intelligence information that indicates a definite risk to the security of the territory should the detainee be released, and the involvement of the detainee in grave activities in support of terrorism in the Popular Front prior to his detention.’

The second petitioner’s appeal against this decision was denied by the Military Appeals Court on 17 October 2007 (ADA 3780/07).

The arguments in the petitions

2.    According to the first petitioner, the decision of the military commander is unreasonable in the extreme. He claims that the detention was based on old and unreliable intelligence information, and it amounts to a punitive act because the petitioner is a Hamas activist. He also argues that since the order was made in his case, he has not been interrogated and his rights have been seriously violated, because the information on which the order was based is privileged and he is not allowed to examine it. Finally he argued that a more proportionate alternative was not considered in his case.

The second petitioner claims that he has no criminal or security record, that no additional intelligence material was collected in his case after his detention, that the possibility of indicting him in a criminal trial rather than administrative detention was not considered, and that  no investigation effort was made to obtain evidence that would allow this. He argued that the longer his detention lasts, the greater the amount of evidence that is needed to justify the continuation of the detention. The second petitioner denies any activity in the Popular Front organization or that he planned to carry out a revenge attack for the death of ‘martyrs,’ as alleged against him. He claims that the activity under discussion was the desire of a group of students to honour the memory of one of the ‘martyrs’ in the school where he studied.

He argued that weight should attach to the passage of time since he was detained, his youth (he was detained before he turned seventeen), the fact that no security incidents were reported in the past in the area where he lives, and the calm that he claims currently prevails given the commencement of  political negotiations.His family also expressed a concern that in prison the second petitioner will associate with undesirable elements, go astray and not continue his studies.

3.    The respondents argue that the petitions should be denied. With regard to the first petitioner, they claim that ‘This is a petitioner who is a Hamas activist and endangers the security of the territory. These reasons necessitate the administrative detention of the petitioner, and there is no other measure that can neutralize the risk that he presents.’ With regard to the second petitioner, they claim that this is ‘a petitioner who is involved in serious terrorism-supporting activity in the Popular Front, and therefore he endangers the security of the territory. These reasons necessitate the administrative detention of the petition, and there is no other measure that can neutralize the risk that he presents.’ Therefore the respondents argue that there was no flaw in the decisions of the authorities that approved the detention orders with respect to the petitioners.

4.    (a) At the hearing before us, counsel for the first petitioner argued at length that the state’s reply is a standard reply that disguises an excessive use of the measure of administrative detention by means of expressions such as ‘terrorism-supporting activity.’ The interrogations that are carried out as a result of the courts’ decisions were not real interrogations but merely sham interrogations, even though the GSS knows very well how to conduct an interrogation. Questions were also raised with regard to the evidence, i.e., whether the information on which the state relied was accurate or not.

(b) Counsel for the second petitioner claimed that his client’s interrogation amounted to only three or four questions. The fact is that  the second petitioner is an inexperienced twelfth-grade high-school student. Older and more important persons than he were not detained. Not enough was done to indict him in a criminal trial. It was argued that the background to the arrest of the second petitioner, who comes from an ordinary family, was the fact that, together with friends at school, where social and political activity takes place, he sought  to conduct a students’ assembly in memory of someone who was killed by the IDF.

(c) Following the oral pleadings of counsel for the state, which reiterated its written pleadings, at the request of counsel for the petitioners we reviewed the privileged material ex parte and conducted a dialogue with representatives of the State Attorney’s office and the defence establishment.

(d) To complete the picture we should point out that the first petitioner was interrogated by the police on 26 March 2007. He was suspected of belonging to and being active in the Hamas organization. The first petitioner, who refused to sign, denied any connection to the organization and described himself as a taxi driver who was a graduate of the An-Najah University in the field of Islamic law. He was asked, inter alia, whether he recruited a certain person (whose name was mentioned) to Hamas, and he answered no. He also denied that he introduced that person to a military activist, he denied that he was a teacher of religious studies, except for classes at the mosque, and he confirmed that he took part in religious studies. He was asked specifically about certain persons.

(e) In his interrogation on 12 June 2007, the second petitioner was suspected of activity against the security of the territory and of  military activity in the Popular Front. He also refused to sign the statement since it was written in Hebrew. He denied the suspicions (incidentally, in his interrogation he said that he had also been interrogated previously), and he claimed that collaborators lied about him for payment. He denied that he intended to carry out military activity as revenge for the death of a ‘martyr’; he also said ‘that if there is anything against me, take me to the Russian Compound [Police Station] for interrogation, and I will prove to you that I am innocent.’

 

Deliberations

5.    This Court has said:

‘An administrative detention order that is made against someone is an exceptional measure that is taken by the competent authority, and it lies outside the ordinary set of laws that lay down the prior conditions for detaining a person. Administrative detention violates personal liberty. This violation is justified under the law only when special and exceptional conditions that require the use of this extreme and unusual measure are satisfied… For the purpose of administrative detention, a balance should be struck between the values of safeguarding the liberty and dignity of the individual and the need to protect the security of the state and the public. This balance is naturally a difficult one, but sometimes it is unavoidable because of the security realities of the state and society. When striking this balance, care should always be taken to ensure that the administrative detention order is used proportionately’ (ADA 8607/04 Fahima v. State of Israel [1], at p. 262, per Justice Procaccia).

This Court regards itself as duty-bound to remind itself of the foregoing from time to time. Administrative detention is the last resort, and it should remain so. The authorities therefore have a duty, notwithstanding the considerable burden that it imposes on them, to try to prosecute detainees in a criminal trial. This is also the reason that we patiently deal with such petitions which constantly come before us, even though in reality they are applications for leave to appeal to a third instance, and some of these petitions have no merit. Counsel for the petitioner does not always know the real facts, and they are disclosed in the privileged evidence. Indeed, our experience in very many administrative detention cases, if truth be told, is that the privileged material that we are authorized to see under the law at the request of the petitioners is usually serious and prima facie justifies detention, but it is based on methods of collecting information that cannot be disclosed because it may strongly harm the security interest in general or specific persons. There are of course exceptions to this, and in these cases  a the  dialogue in the courtroom occasionally persuades the state representatives to change their position. But it is quite likely  that in certain cases additional efforts to interrogate suspects would produce evidence that would allow a prosecution, without revealing what cannot be revealed.

 

Administrative detention and a criminal trial

6.    Hear it bears mention  that in a series of judgments this Court has called for the use of criminal trials to be preferred to the use of administrative detention. The ordinary criminal trial should certainly be preferred to the use of a power given to the Minister of Defence or the military commander in the territories to issue an administrative detention order (ADA 2/82 Lerner v. Minister of Defence [2] (per President Shamgar); ADA 1/88 Agbariyeh v. State of Israel [3] (per Justice Shlomo Levin); see also HCJ 5784/03 Salama v. IDF Commander in Judaea and Samaria [4], at p. 727 {296-297 (per President Barak); ADA 8788/03 Federman v. Minister of Defence [5] (per Justice Grunis). This position is obviously based on the fact that a criminal trial allows greater protection of the defendant’s rights. For this reason, this Court has issued a call — which, as will be explained below, has been heard — to interrogate all administrative detainees, inter alia in order to examine the possibility of bringing them to trial. Indeed, from a theoretical viewpoint, the criminal trial and the administrative proceeding are intended to serve different purposes. Whereas the criminal trial is retrospective and seeks to call a person to account for offences that have already been committed, the administrative proceeding is prospective and seeks to prevent the commission  of offences. The preference for criminal trials should be understood in three different contexts. First, in a criminal trial evidence is presented to the defendant and he has the opportunity of responding to it. Second, it sometimes happens that prospective plans in themselves constitute a criminal offence, such as forming an unlawful organization, offences of conspiracy and attempt. Third, in many cases criminal activity in similar contexts in the past testifies to a future threat. This was mentioned by the president of the Jerusalem District Court, Judge Yehuda Cohen, who said: ‘I am of the opinion that the detainee’s past, namely the offences that are attributed to him, is a warning light for the future’ (cited by President Yitzhak Kahn in ADA 1/82 Kawasmah  v. Minister of Defence [6]). For this reason, the criminal trial is preferable to the administrative proceeding, and that is why a proper interrogation is needed. For the reasons that will be explained below (see paragraph 9), the court that scrutinizes the administrative detention is shown intelligence evidence that testifies to past activity, but since its disclosure will almost certainly undermine security in the territory, there is no alternative but to rely on it as a basis for preventative detention that is prospective.

On administrative detention in Israel and the territories

7.    (1) Administrative detention in Israel proper is governed by the Emergency Powers (Detentions) Law, 5739-1979 (hereafter — the Emergency Powers (Detentions) Law or the law). The explanatory notes to the draft law (the draft Emergency Powers (Detentions and Miscellaneous Provisions) Law, 5738-1978, Draft Laws, 5738, 294) described the draft law as a solution to the criticism that had been levelled against the Defence (Emergency) Regulations, 1945, which were introduced in an attempt to subdue the Jewish underground organizations during the British Mandate. It was said that although —

‘… in the state of siege in which the state has found itself since its establishment, special measures are necessary to ensure the proper defence of the state against persons who plan to destroy it, nonetheless the existence of the extreme regulations that are still in force should not be acceptable, even though democratic countries employ similar regulations in less difficult circumstances.’

It was therefore proposed to that an Israeli law should be enacted to ‘satisfy security needs while safeguarding important principles of the rule of law.’ The use of the Emergency Powers (Detentions) Law is contingent upon the existence of a state of emergency under s. 9 of the Law and Administration Ordinance, 5708-1948, which, as is well known, has never been cancelled, because of the position in which Israel has been placed since it was declared when the state was founded. Section 2 of the law provides that the Minister of Defence may order administrative detention for a period that does not exceed six months if he has ‘a reasonable basis for assuming that reasons of state security or public security require a certain person to be held in detention’ (s. 2(a) of the law). The Minister of Defence may extend the period of detention from time to time by an additional six months (s. 2(b) of the law). Admittedly, on each occasion it is only possible to extend the order by six months, but there is no limit upon the number of extensions. If a person is arrested, he should be brought within 48 hours before the president of the District Court, who may approve the order, set it aside or shorten it. If he does none of the aforesaid, the detainee shall be released (s. 4 of the law). If the order is approved, the detainee should be brought within three months before the District Court for a de novo hearing (s. 5 of the law). An appeal of the decision shall be heard before the Supreme Court by one justice (s. 7 of the law).

(b) Administrative detentions in the territories are governed by the Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (Amendment no. 30) (no. 1555), 5765-2005 (hereafter — the Administrative Detentions Order), which was originally the Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (no. 1226), 5748-1988, that underwent many changes over the years, especially with regard to the periods of time stated therein. The detention order is issued by the military commander in the territory or someone who has been authorized by him. In this arrangement also the initial period of detention may not exceed six months, but the military commander is entitled to extend it from time to time.

(c) One of the differences between administrative detention in Israel and administrative detention in the territories lies in the timing of the judicial review. According to the provisions of the Administrative Detentions Order, the detainee should be brought before a military judge within eight days of the time of his arrest. In one case  this period was extended to 18 days, such as during the ‘Protective Shield ’ operation and the difficult struggle against suicide bombers in 2002. This is different from the law applicable in Israel, which, as stated above, requires the order to be subjected to judicial review within 48 hours. The grounds for setting aside a detention order are set out in s. 4(c) of the Emergency Powers (Detentions) Law and in s. 4(b) of the Administrative Detentions Order, and they are both worded in the same way, namely that it has been proved that ‘the reasons for which it was made were not objective reasons concerning the security of the territory or the security of the public, or that it was made in bad faith or as a result of irrelevant considerations.’ There are also provisions with regard to periodic judicial review. Both under the law that applies in Israel and under the law that applies in the territories, the judge may depart from the rules of evidence if he thinks that it is necessary to do so in order to discover the truth and to dispense justice (s. 6 of the law, s. 6(a) of the Administrative Detentions Order). These provisions naturally relate to the type of evidence that is used in such cases; the court inspects privileged material ex parte. Judicial review in the territories is exercised by a Military Court judge and his decision may be appealed before a judge in the Military Appeals Court; finally, petitions are frequently filed in this Court. The detainees are entitled to representation by lawyers, which they actually receive.

 

The nature of judicial review

8.    (a) To complete the picture we should mention that the Emergency Powers (Detentions) Law was preceded by Regulation 111 of the Defence (Emergency) Regulations, according to which the military commander was entitled to issue an order that a person should be placed in detention, without any trial, if he thought ‘that it was necessary or beneficial to make the order in order to safeguard the welfare of the public, to protect the State of Israel, to maintain public order or to subdue an uprising, rebellion or riot.’ The same applied to detention in the territories before the Administrative Detentions Order was enacted. In ADA 2/86 A v. Minister of Defence [7] Justice Bejski accepted the approach of Prof. Y.H. Klinghoffer (in his article, ‘Preventative Detention for Security Reasons,’ 11 Hebrew Univ. L. Rev. (Mishpatim) 286 (1981)), that since the law was enacted with its requirement of judicial review, we are no longer dealing with an administrative act; the court said (ibid. [7], at p. 513) ‘that the judicial review that is required by the provisions of the law is a safeguard against the arbitrariness of the administrative authority.’ I should mention the remarks of Prof. Klinghoffer in that article: ‘… the great principle of the rule of law, which provides that a person should not be deprived of his personal liberty unless a judge has so decided, is to some extent satisfied.’ In view of the aforesaid, the court does not merely examine, as it used to do, the legality of the administrative order, while refraining from replacing the discretion of the administrative authority with its own discretion, but it exercises independent discretion (per Justice Bejski, in A v. Minister of Defence [7], at p. 515; Klinghoffer, ibid., at p. 287). The scope of the review carried out by the president of the District Court when he considers an administrative detention is greater than the discretion given to the court in other contexts, when it examines the decisions of an administrative authority (HCJ 4400/98 Braham v. Judge Colonel Shefi [8], per Justice Or), and the same is true of the jurisdiction of the Supreme Court when it hears an appeal against a decision of the president of the District Court (for a comprehensive analysis of the Emergency Powers (Detentions) Law and the judicial discretion thereunder, see Federman v. Minister of Defence [5]; ADA 4794/05 Ofan v. Minister of Defence [9], per Justice Adiel). The authority of the military courts in the territories should be regarded in the same way (see para. (c) below).

(b) We should add that the Minister of Defence also does not have the authority to extend an administrative detention after the court decides that it should be shortened, subject to certain exceptions (HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [10], at p. 362, per Justice Zamir). In that case, emphasis was placed on the importance of thorough and effective judicial review: ‘Judicial review is the guardian of liberty, and it should be carefully protected’ (ibid. [10], at p. 350, see also at p. 360); for a criticism of this approach, see A. Sharon, ‘Administrative Detention: Limits of Authority and Scope of Review,’ 13 Mishpat veTzava (Law and the Army: IDF Law Review) 205 (1999). See also my article, ‘Security and Law: Trends,’ 44 HaPraklit (Israel Bar L. Rev.) 409 (2000), which is also included in my book, Paths of Government and Law — Public Law Issues in Israel (Hebrew) (2003), at pp. 263, 270. For a discussion of the subject of administrative detentions and a critique of Prof. Klinghoffer’s approach regarding the status of the court, see E. Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects (2004), at p. 289. I should add that, ultimately, even if the theoretical basis for the powers may be disputed, it is clear that the court, whether civil or military, is limited to the evidence brought before it, and ‘a judge only has what his eyes see’ (Babylonian Talmud, Sanhedrin 6b [25]). It may also be said that the power is regarded as ‘jointly’ exercised by the minister and the president of the court.

(c) As stated, the court has also applied the criteria practised in Israel to administrative detentions in the territories (El-Amla v. IDF Commander in Judaea and Samaria [10], at p. 361:

‘It would appear that despite the differences between the Emergency Powers (Detentions) Law that applies in Israel and the Administrative Detentions Order that applies in Judaea and Samaria, there is no basis for distinguishing in this respect between judicial review of a detention order under the Emergency Powers (Detention) Law and judicial review of a detention order under the Administrative Detentions Order.’

There is much logic in this, since, from a substantive viewpoint, what difference is there between a loss of liberty in Israel and a loss of liberty in the territories (in this regard, see also the article of N. Benisho, ‘Criminal Law in Judaea, Samaria and the Gaza Strip: A Brief Description and Trends,’ 18 Mishpat veTzava (Law and the Army: IDF Law Review) 293 (2005), on the subject of the general trend of equating the law in Israel and that of the territories.

Administrative detention: evidentiary  issues and privileged information

9.    (a) The main difficulty that gave rise to administrative detentions lies first and foremost in the evidentiary sphere. In practice, much of the evidence in these cases is privileged, usually because of the concern of revealing sources and intelligence methods and witnesses’ fears with regard to appearing in court (E. Nun, ‘Administrative Detention in Israel,’ 3 Plilim (Israel J. of Crim. Justice) 168 (1993), at p. 170). The risks in these contexts are real (see also Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects, at pp. 298-299). Notwithstanding, it should be remembered that in this situation a detainee does not have a proper and complete opportunity of defending himself against the allegations against him he is not shown most of the evidence, he cannot examine it and is unable to conduct a cross-examination. This requires the court to be especially careful and to examine the evidence brought before it very carefully; the court should appoint itself ‘temporary defence counsel’ (CrimA 889/96 Mazrib v. State of Israel [11], at p. 463 (per Justice M. Cheshin) and act as ‘an advocate for the detainee, and examine the material brought before it scrupulously and thoroughly’ (Federman v. Minister of Defence [5], at p. 187; ADA 6183/06 Gruner v. Minister of Defence [12], per Justice D. Cheshin). The court has also said:

‘… and when the defence establishment operates within the limits of the law, with its hands tied in various contexts for good and proper reasons of human rights (see the remarks of President Barak in HCJ 5100/94 Public Committee Against Torture v. Government of Israel [13], at p. 845 {605}, on democracy and security), privileged material that is not shown to the person involved is a tool that cannot be avoided… Obviously, this  imposes a special and enhanced duty on judicial authorities in the military courts and this Court, when these matters come before it (and they do so almost on a daily basis), to examine the material  brought before them with care, as they act as a kind of advocate on behalf of the person for whom the material is privileged’ (HCJ 5555/05 Federman v. Central Commander [14], at p. 869).

(b) With regard to the evidence, the court should direct itself in accordance with the following:

‘Information relating to several incidents cannot be compared to information relating to a single incident; information from one source cannot be compared to information from various sources; and information that is entirely based on the statements of agents and informers only cannot be compared to information that is also corroborated or supported by documents filed by the security services or by intelligence obtained from carrying out special operations’ (HCJ 5994/03 Sadar v. IDF Commander in West Bank [15], per Justice Mazza).

Therefore the court not only hears counsel pleading for the Minister of Defence, but also explanations from members of the General Security Service (Federman v. Minister of Defence [5], at p. 189). The quantity and quality of evidence that is required in order to justify the administrative detention can and should change with the passage of time; evidence that was sufficient to justify the making of the administrative detention order may not be sufficient to justify an extension of that detention, and evidence that will justify an extension of an administrative detention order may not be sufficient to justify a further extension thereof (see Salama v. IDF Commander in Judaea and Samaria [4]). The security establishment should therefore take into account new relevant material (HCJ 297/82 Berger v. Minister of Interior [16], at p. 44, per Justice Barak), and it should continually act in order to obtain evidence, so that it may discover the truth in so far as that is possible.

The war against terrorism — the United States

10. (a) Other countries too have  contended with the problem of the war against terrorism, especially in recent years. The United States, for example,underwent  a difficult legal odyssey  since the terrorist attacks on 11 September 2001, and initially whoever was captured in Afghanistan or other places in the pursuit of Al-Qaida personnel who were behind the 11 September attacks was held at the Guantanamo Bay base outside the United States with a minimum of rights, according to the approach that these detainees were not subject to judicial review in the United States. For a brief description of the historical perspective of aspects of administrative detention at a time of crisis in the United States itself, see my article, ‘Public Law in Times of Crisis and Times of War,’ in my book, Paths of Government and Law — Public Law Issues in Israel, supra, at pp. 18, 20 (Hebrew). But in 2004 the United States Supreme Court decided in Rasul v. Bush [22], contrary to the administration’s position, that the Federal courts had jurisdiction to consider the detentions of alien nationals at Guantanamo Bay within the scope of habeas corpus, and the administration did not have the power to deny them access to the court. In terms of the Israeli experience — and unfortunately we have been compelled to acquire such experience over decades — granting a right of standing in the High Court of Justice to detainees who are situated in the occupied territories has been recognized for a very long time, since the decision of Attorney-General Meir Shamgar (later  president of the Supreme Court) after the Six Day War not to argue the lack of a right of standing. Since then, the cases of detainees in the territories have been heard by this Court. See M. Shamgar, ‘Legal Concepts and Problems in Military Government in the Territories Administered By Israel 1967-1980,’ The Israeli Military Government –The Initial stage, vol. l (M. Shamgar, ed.) at pp. 13, 56; E. Nathan, ‘The Power of Supervision of the High Court of Justice over Military Government,’ ibid, at p. 109; D. Shefi; ‘The Reports of the U.N. Special Committee on Israeli Practice in the Territories,’ ibid, at pp. 285, 306-308. See also J.M. Seltzer, ‘From a Chessboard to the Matrix: the Challenge of Applying the Laws of Armed Conflict in the Asymmetric Warfare Era,’ in War and Peace in the Jewish Tradition (L. Schiffman, J.B. Wolowelsky (eds.), R.S. Hirt (series editor), 2007). But the pendulum between personal rights and national security in the United States did not reach equilibrium after Rasul v. Bush [22], as we shall briefly explain (incidentally, I should point out that the expression of ‘rights vs. security’ that is commonly used in legal discussions is problematic, since the rights of victims and the public as a whole to security and life are also rights, but they are located on the ‘security’ side of the equation, and therefore perhaps the correct expression is ‘rights vs. rights,’ or the balancing of individual rights against the rights of the public in the war against terrorism; see by analogy the remarks of President Shamgar in CrimFH 2316/95 Ganimat v. State of Israel [17], at pp. 620-621).

(b) Following Rasul v. Bush [22], the United States administration decided to establish a network of military commissions for judicial proceedings relating to the detention of alien combatants. The United States Supreme Court considered this in Hamdan v. Rumsfeld [23]. It held in 2006 that the commissions had not been established with the necessary congressional authorization, and they therefore were not valid. It also held that the commissions did not provide the necessary procedural safeguards. Following this decision, the Military Commissions Act was enacted the same year. This law approved the commissions, and it also deprived the courts of power to hear habeas corpus petitions of detainees from Guantanamo Bay and persons in similar positions. Admittedly an appeal was permitted to the Court of Appeals in the District of Columbia (Washington D.C.), but under very limited conditions, including a presumption that the evidence before the commissions is accurate and complete. Currently, a third case is being heard (Boumediene v. Bush (D.C. Cir., 2006)), in which it is claimed by detainees at Guantanamo Bay that the procedure laid down in the Military Commissions Act that was passed after Hamdan v. Rumsfeld [23] does not sufficiently protect the rights of detainees with regard to evidence (hearsay testimony), representation by defence counsel and interrogation techniques. The administration argued in reply that the rights given to detainees under the Military Commissions Act were extensive. The Federal Court of Appeals accepted the administration’s position that in the absence of constitutional rights there was nothing improper in the fact that the Military Commissions Act of 2006 denied the Federal courts habeas corpus jurisdiction; therefore the detainees’ claims were not heard on their merits. The United States Supreme Court did not agree initially to hear the case, but it changed its mind and the matter is currently under consideration. The key question is whether the detainees are entitled under the United States Constitution to the right of habeas corpus and the right to a fair trial, since jurisprudential history in the United States allows an ‘adequate substitute’ to ‘formal’ habeas corpus by means of a ‘suspension clause,’ when that substitute is ‘adequate and effective.’

English case law — effective control and imperative reasons of security

11. Recently the House of Lords gave judgment in R (Al-Jedda) v. Secretary of State for Defence [24]. It was held in the judgment, which concerned detainees in Iraq who were being held by British forces, that they were being held under the effective command and control of the United Kingdom rather than the United Nations, as the Secretary of State argued. Notwithstanding, it was held that the UK was entitled to detain persons for ‘imperative reasons of security,’ while ensuring that the detainees’ rights under article 5(1) of the European Convention on Human Rights (which concerns detention) were not infringed to any greater extent than was inherent in such detention.

The criminal investigation

12. (a) This Court has on several occasions addressed the necessity of conducting a proper interrogation of someone held in administrative detention soon after being detained, in which the information that can be disclosed is shown to him. This should be regarded as a basic right:

‘Our approach… is based on the fundamental outlook regarding the rights of a person held in administrative detention, no matter how serious his actions are believed to be…

Within the basic scope of human dignity — and the rules concerning this apply to everyone, even to persons suspected of the most serious, despicable and depraved offences, whose perpetrators are as far removed from respecting human beings as the east is distant from the west — there is a duty to interrogate a person soon after his detention, and to disclose to him whatever information can be shown to him and is not privileged material that cannot be disclosed. The purpose, beyond allowing him to claim that he is a victim of mistaken identity and other similar claims, is that a person should not be detained without being given an opportunity, even if he makes no use of it, to present his side of the case in order to show, and to try and persuade the authorities, that there is no justification for his detention. As stated, what is shown to him should reflect the most that the unprivileged material allows to be disclosed. There is no need to speak at length about the fact that administrative detention is a serious sanction, because in view of the privileged nature of the evidence the detainee cannot contend with all of the accusations against him, and the court should act as his advocate (see Federman v. Central Commander [14], at p. 869)… Procedural rights are not luxuries; they also do not impose any real burden on the system (to remove doubt, they should exist even if they did impose a real burden)’ (HCJ 1546/06 Gezawi v. IDF Commander in West Bank [18], at para. 6 of my opinion).

See also HCJ 3722/06 Gitt v. IDF Commander in West Bank [19] and HCJ 5287/06 Zatri v. Military Prosecutor [20], where Justice D. Cheshin, after considering the reported or planned establishment of permanent arrangements for conducting interrogations at places of detention, said the following:

‘We would like to point out that the interrogation of the administrative detainee should admittedly be done on the basis of the unprivileged material, but it should be done by someone who is familiar with the details of the privileged material. There is no real purpose or significance to a meaningless interrogation. A proper interrogation should be practical, credible and effective, in a sincere attempt to obtain evidence to bring the administrative detainee to a criminal trial. To this end, the interrogator should have in his possession the privileged material relevant to the case.’

We should add that a proper interrogation should obviously not be conducted merely for the sake of appearances; it is precisely because of the manifestly problematic nature of administrative detention that, as aforesaid, every effort should be made to bring the detainee to a criminal trial.

(b) There are some interrogations where we see that the documentation is not satisfactory from the viewpoint of the effort made to obtain evidence that may be used for a criminal prosecution. Indeed, today — following the rulings of this Court — there is greater awareness of the need to carry out interrogations, and we have been informed of concerted efforts to do this. We are still of the opinion that there is room for improvement in this regard, to make the interrogations sufficiently meaningful. Although the evidence is mainly privileged for the reasons mentioned, in some cases there is a clue or room to manoeuvre that enables the conduct of a more through interrogation even though we are constantly being told of priorities and budgetary problems. Sometimes we even wonder why someone who is presented to us in privileged evidence as a person of considerable importance, or even a leading figure, is not interrogated in the framework of a comprehensive intelligence interrogation rather than a brief police one. For example, we should point out that in the present case, as far as the first petitioner is concerned, he was asked in the police interrogation of 26 March 2007 about the fact that someone, whose name is mentioned, said (admittedly in the year 2000) ‘that you recruited him to the Hamas organization.’ The first petitioner denied this. We do not know the significance of the passage of time in this context, but in such a case the current ‘criminal’ implications of this matter should be examined more thoroughly. Returning to the general principle, there is in our opinion room for more extensive and more thorough interrogations in order to reduce the number of administrative detainees.

On the art of striking a balance

13. Ultimately, in conditions of an unceasing war against ongoing terrorism, in which, day by day and hour by hour, both the security establishment and the court are called upon to strike a balance between security needs and human rights, it would appear that the use of the measure of administrative detentions is still an unavoidable necessity, but we should ensure, in so far as possible, that the use made of it is proper and proportionate. The art of striking a balance between the serious violation of individual liberties and the security of the public is complex:

‘The longer the period of administrative detention, the greater the weight of the detainee’s right to his personal liberty in the balance against public interest considerations, and the greater the burden on the competent authority to prove the necessity of continuing to hold the person in detention’ (HCJ 2233/07 A v. IDF Commander in Judaea and Samaria [21], per Justice Procaccia).

It is not superfluous to mention that administrative detention anticipates a future danger; it is not essentially a punitive measure, but a preventative one (Gruner v. Minister of Defence [12]; Fahima v. State of Israel [1]). Given this purpose of administrative detention, it is self-evident, as we have said, that orders that extend the period of administrative detention should be examined in accordance with the length of the detention and the extent of the threat that the detainee presents, or. as Justice Grunis said, a probability test should be conducted to examine whether harm to security is almost certain (Federman v. Minister of Defence [5], at p. 188). Ultimately —

‘Everything depends on the circumstances of the case. In each case the evidence before the security authorities should be examined in order to ascertain the extent of the threat presented by the detainee to see whether it justifies his continued detention. For example, the nature of the suspicions against the detainee, the strength of the existing evidence against him and similar considerations should be taken into account (Salama v. IDF Commander in Judaea and Samaria [4], at p. 728{297}) , per President Barak).

Morality and combat in a Jewish and democratic state

14. Israel, which is both a Jewish and a democratic state, has outlooks on combat morality that are based on Jewish law. As Rabbi Aharon Lichtenstein said (‘The Combat Morality of our Ancestor Abraham,’ 2006, Yeshivat Har Etzion web site): ‘We should continue to follow the path outlined by our ancestor Abraham [i.e., the manner in which he conducted his war] — to be sensitive to morality and justice even during war and combat that are just and right in themselves; see also Yaron Unger, ‘Do not Fear, Abraham — On Combat Morality in Israel,’ Portion of the Week (A. HaCohen, M. Vigoda, eds.), at p. 230; A. HaCohen, ‘I Am for Peace, But When I Speak, They Are for War — Law and Morality in Times of War,’ ibid., at p. 260.

Conclusion

15. Our intention in this judgment was merely to outline once again the judicial policy with regard to administrative detentions, and to mention once again, in addition to the fact that administrative detention is an unavoidable necessity, the duties of conducting a real interrogation, the need for great care in judicial scrutiny of privileged material, and the issue of proportionality. It would not be superfluous to also reiterate that bringing someone to a criminal trial, where it is possible, is far preferable to administrative detention.

From the general rule to the specific case

16. As we have said, with the consent of counsel for the petitioners, we examined the privileged evidence in their cases ex parte, and we conducted a dialogue with the representatives of the State Attorney’s office and the security establishment. We have been persuaded that there is a real basis to the respondents’ claim regarding the petitioners’ activity, according to updated information. We also considered the young age of the second petitioner, but the seriousness of the position could be seen from the material that we have seen, and the position is not as his counsel claimed. At the end of the day, we see no grounds for intervention in the decisions of the military courts, and we are unable to grant the petitions, subject to what was stated above. There is no order for costs.

 

 

Justice E.E. Levy

I agree.

 

 

Justice Y. Danziger

I agree.

 

 

Petition denied.

11 Tevet 5768.

20 December 2007.

 

HCJ 3799/02

 

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

2.         The Association for Civil Rights in Israel

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

4.         Physicians for Human Rights

5.         B'tselem – The Israeli Information Center for Human Rights in the Occupied Territories

6.         The Public Committee Against Torture in Israel

7.         Center for the Defense of the Individual

 

v.

 

1.         GOC Central Command, IDF

2.         Chief of the General Staff, IDF

3.         The Minister of Defense

4.         The Prime Minister of Israel

 

The Supreme Court Sitting as the High Court of Justice

[June 23, 2005]

Before President A. Barak, Vice President M. Cheshin & Justice D. Beinisch

 

Petition for an Order Nisi and an Interlocutory Order

For Petitioners: Marwan Dalal

For Respondents: Shai Nitzan

 

JUDGMENT

 

President A. Barak:

 

            According to the "Early Warning" procedure, Israeli soldiers wishing to arrest a Palestinian suspected of terrorist activity may be aided by a local Palestinian resident, who gives the suspect prior warning of possible injury to the suspect or to those with him during the arrest. Is this procedure legal? That is the question before us.

 

A.        The Petition and the Course of its Hearing

 

Petitioners, seven human rights organizations, submitted this petition after the commencement of combat activities in the territories, in the framework of operation "Defensive Wall".  They contend that the IDF is using the civilian population in a way that violates fundamental norms of international and constitutional law.  They have based their arguments on reports in the Israeli press and upon reports of international human rights organizations (e.g. Human Rights Watch, B'tselem, and Amnesty International).  These reports contain descriptions of many cases in which the IDF made use of local residents for military needs.  Described, inter alia, are cases in which the IDF forced Palestinian residents to walk through and scan buildings suspected to be booby-trapped, and in which it ordered them to enter certain areas before the combat forces, in order to find wanted persons there; also described are cases in which the army used residents as a "human shield" which accompanied the combat forces, to serve as a shield against attack on those forces.  Thus, residents were stationed on porches of houses where soldiers were present, in order to prevent gunfire upon the houses.  Further described were cases in which local residents were asked about the presence of wanted persons and weapons, under threat of bodily injury or death, should the questions go unanswered.  According to the reports, relatives were taken in certain cases as hostages, in order to ensure the arrest of wanted persons.

 

2.         It was against this background that petitioners submitted this petition (on May 5 2002).  They contended that respondents were violating Israeli constitutional law and the fundamental norms of public international law, when the civilian population was used during operations in the Judea and Samaria area.  They asked that this Court issue an interlocutory injunction, ordering respondents to refrain from using people as a "human shield" or as hostages during their military operations.  Respondents responded that:

 

"In light of various complaints which have reached respondents, including, inter alia, the information detailed in the petition, and taking no position on the question whether the content of the complaints is true or not, and to eliminate any doubt, the IDF has decided to immediately issue an unequivocal order to the forces operating in the field, that all forces operating in the field are strictly forbidden to use civilians, qua civilians, as a 'live shield' against live fire or attacks by the Palestinian side, or as 'hostages'.  It is further clarified in the order that this rule applies in houses, in streets, and in any area or place where IDF forces are operating.

 

It is to be noted, that some of the complaints detailed in the petition do not relate to use of people as 'human shields', rather to the assistance which the IDF receives from Palestinian residents, for the purpose of entry into houses of other Palestinian residents during operational activity.  In light of the complaints detailed in the petition, the IDF decided to clarify that such acts are also forbidden, in those cases in which the commander in the field believes that the civilian is liable to be exposed to danger of bodily harm."

 

3.         Respondents later announced (on May 20 2002) that the Chief of the General Staff had instructed the IDF to prepare orders relating to the subject.  As a result, the instructions providing that it is strictly forbidden to use Palestinian civilians as a live shield (to position civilians alongside army forces in order to protect the soldiers from injury) were issued.  The instructions further provided that it is strictly forbidden to hold Palestinian civilians as "hostages" (to seize and hold civilians as a means to pressure others).  Last, the instructions provided that it is strictly forbidden to use civilians in situations where they might be exposed to danger to life or limb.  However, respondents did not rule out the possibility of being assisted by the local population.  They emphasized that such assistance is solicited in situations where it will allow avoidance of a military act liable to cause greater harm to local residents, to soldiers, and to property.  At the first hearing in the petition (on May 21 2002), before Justices T. Strasberg-Cohen, D. Beinisch, and E. Rivlin, it was decided that respondents shall submit a supplementary response, in which they shall update the Court regarding preparation of an order to formalize and clarify the issue of soliciting Palestinian residents' assistance.

 

4.         Petitioners submitted a statement (on August 18 2002), attempting to illustrate the illegality of using civilians, through the case of the death of Palestinian civilian Abu Muhsan from the village of Tubas.  Abu Muhsan was killed (on August 14 2002) while participating in "the neighbor procedure", as IDF forces tried to arrest a dangerous wanted person. Petitioners contended that he was asked to assist soldiers during the arrest of a wanted person in a most dangerous situation, and that his death illustrates the illegality of use of civilians who are asked to assist the security forces.  Against this background, petitioners claimed that one cannot rely at all upon security agencies' discretion in employing the procedures they enacted.  In light of petitioners' statement, this Court issued (Strasberg-Cohen J. on August 18 2002) a temporary interlocutory injunction, ordering respondents to refrain from using Palestinian civilians as a "human shield" or as "hostages", "including their use for any military acts such as 'the neighbor procedure', absolutely, irrespective of the discretion of any military personnel."  This temporary interlocutory injunction was extended a number of times, with respondents' agreement. 

 

B.        The "Early Warning" Procedure

 

5.         In respondents' supplementary statement (of December 5 2002), they stated that IDF soldiers will continue to be absolutely forbidden from using civilians as a "live shield" against gunfire or attacks by the Palestinian side, or as "hostages".  Regarding assistance by Palestinian residents in order to prevent loss of life, it was decided that an order would be issued, clarifying in which exact situations it is forbidden, in which permitted, and under what restrictions.  Respondents stated that at the end of a debate in which various IDF officials participated, instructions and orders were issued (on November 26 2002), along with an operational directive by the name of "Early Warning".  This directive lays out the procedures for soliciting the assistance of local residents, in order to arrest wanted persons.  The directive opens with the following general description:

 

"General

 

'Early Warning' is an operational procedure, employed in operations to arrest wanted persons, allowing solicitation of a local Palestinian resident's assistance in order to minimize the danger of wounding innocent civilians and the wanted persons themselves (allowing their arrest without bloodshed).  Assistance by a local resident is intended to grant an early warning to the residents of the house, in order to allow the innocent to leave the building and the wanted persons to turn themselves in, before it becomes necessary to use force, which is liable to endanger human life".

 

When operations are preplanned, the procedure must be approved, in the framework in which the operations are approved.  In cases of activity which was not preplanned, the approval of the brigade commander, his deputy, or of the brigade operations directorate officer is needed, in order to use it.  When the procedure is used, an effort is to be made to find a person such as a relative or neighbor, who is acquainted with the wanted person or with the residents of the house, or has influence over them.  The procedure is not to be used to solicit the assistance of women, children, the elderly, or the disabled (clause 1 of the procedure).

 

6.         The "Early Warning" directive also included the details of the procedure for approaching a resident in order to receive his consent to provide assistance.  Due to its importance, we shall quote it in its entirety:

 

"2.       Approaching the Local Palestinian Resident in order to Receive Assistance

 

Contact with the local resident is to be made by the commander of the force directly, or via a translator.  Contact is to be made in a language understood by the local resident, while strictly preserving human dignity.  When contact is made with the resident, it is to be clarified to him that he is being asked to assist soldiers in order to prevent injury to innocent persons or their property.

 

Emphases:

 

A.        The civilian population has no obligation to assist the IDF in warning civilians of attack.

 

B.        Contact, and persuasion, shall be exclusively verbal.

 

C.        It is strictly forbidden to use force or violence toward a local resident or others, in order to secure said assistance.

 

D.        It is strictly forbidden to threaten a resident, or other people, that physical violence, arrest, or other means will be used against them.

 

E.         It is strictly forbidden to hold people 'hostage' in order to secure the assistance of a local resident.

 

F.         If a local resident refuses – under no circumstances is provision of assistance to be forced" [emphases in original].

 

7.         The operational directive included instructions regarding the use of the procedure, when the local resident has agreed to assist army forces.  Here also the instructions will be fully quoted, in light of their importance:

 

"3.       Assistance of a Local Resident

 

Solicitation of a local resident's assistance is intended to allow innocent persons to leave the building and/or allow the wanted persons to turn themselves in before there is a need to use force, which is liable to endanger human life.  For that purpose, one may ask a local resident to approach the house, to give notice to those in the house that the army is present and to warn them that if they do not leave the house, the army is liable to use force in order to arrest the wanted persons.

 

Emphases:

 

A.        It is strictly forbidden to use the local resident in military missions (e.g. locating explosive charges, intelligence gathering).

 

B.        It is strictly forbidden to solicit the assistance of a local resident, when the commander of the force believes that the latter will be in danger – even with his consent.

 

C.        It is strictly forbidden to use a local resident as a 'live shield' against attack.  Thus, during the advance of the force, accompanied by the local resident, the latter is not to be positioned at the head of the force.

 

D.        It is strictly forbidden to equip the local resident with military equipment (uniform, weapon, battle vest, etc.).

 

E.         'Early Warning' is not to be employed when there is another effective way to achieve the objective, whose results are less severe.

 

F.         It is to be preferred that the local resident not be asked to enter the building, rather be asked to relay the warning from the outside (through a knock on the door and a conversation with the persons in the building from the outside).  He shall be asked to enter the building only in those cases in which there is no other way to relay the warning, and only if the commander of the force believes that the local resident will not be exposed to danger as a result of his entry into the building" [emphases in the original].

 

In addition, the operational directive provides that the assistance of a local resident will be terminated as soon as the persons in the house have exited it (clause 4(1) of the directive).  It further provides that the assistance of a local resident shall be used only at a specific time and place, and that one may not "adjoin a local resident to a military force" (clause 4, emphasis B).  It also determines the duty to terminate the assistance prior to attacking the building or undertaking other forceful acts (clause 4, emphasis C).  It was decided that military units can make use of the procedure only after having received detailed guidance about the directive.

 

8.         As a result of the issuing of the "Early Warning" procedure, the Court held an additional hearing in the petition (on January 21 2003), before Strasberg-Cohen J., Englard J., and Procaccia J.  That hearing was not a hearing in the original petition.  That petition is no longer relevant.  The hearing was a hearing regarding the new procedure – "The Early Warning Procedure".  During the hearing, petitioners' claim that the new procedure is illegal was discussed.  The parties were asked to supplement their arguments, while relating to the new procedure from the standpoint of international law, and to the question of the legitimacy of the differentiation between use of people as "live shields" or as "hostages" on the one hand, and the acts described as permitted in the procedures on the other.  It was decided that the temporary injunction would continue to be in force until judgment in the petition is handed down; that, with amended wording, such that the wording of the original injunction would be replaced by wording by which "respondents shall refrain from using people as human shields and/or as hostages during their military activity in the West Bank".  The use of the new procedure, in and of itself, was not prohibited in the interlocutory injunction.

 

9.         Petitioners later asked (on April 27 2003) to submit additional testimony regarding respondents' use of civilians as human shields and/or as hostages.  Attached to the motion was the testimony of a number of Palestinian residents, who, according to their claims, were forced to serve as "human shields" for IDF forces during their operations of the forces in the West Bank in the months of January-March 2003.  Against the background of this testimony, petitioners claimed that respondents continue to use Palestinian civilians as a "human shield" and/or as hostages, in violation of international law which applies to them, and in violation of the temporary interlocutory order.  Petitioners also submitted (on May 22 2003) the testimony of a volunteer in the Machsom Watch[ק1]  organization who was, she claimed, witness to IDF soldiers' use of a Palestinian bus driver at one of the checkpoints in the West Bank.  Per petitioners' request, an urgent hearing in the petition was held (on July 8 2003), before Barak P., Or V.P., and Mazza J.

 

10.       On August 16 2004, petitioners submitted a motion pursuant to the Contempt of Court Ordinance.  The motion included the testimony of eight more people regarding the use of Palestinian civilians as "human shields" and/or as hostages during the months January-July 2004.  Inter alia, it was contended in the motion that during respondents' military activity, they forced Palestinian civilians to stand in front of them during live fire exchanges with the side with which the civilian identifies; to enter houses and buildings before the military force; to search for objects suspected to be dangerous objects; and to check the bodies of combatants belonging to the civilians' side.    

 

11.       The fourth hearing in the petition was held (on September 5 2004) before Barak P., Mazza V.P., and Cheshin J. (who replaced Or V.P., who had retired).  During the hearing, the new procedure and the way it is implemented by IDF forces was discussed.  In oral argument, respondents presented the accumulative experience from the previous two years, in employing the procedure in hundreds of cases. That experience, it was claimed, shows that the procedure is not forced upon the residents, and that its use has not led to bodily or mental injury to the participants in it.  Respondents clarified that they do not take the claims regarding violation of the procedure lightly, and that those are being examined and investigated.  At the end of the hearing, it was decided that the continued hearing of the petition would be adjourned, in order to allow respondents to submit a report on their treatment of the cases presented in petitioners' documents, regarding charges of violation of the "Early Warning" procedure.  Such report was submitted in a third supplementary statement by respondents (of February 28, 2005).  Respondents discussed the rationale upon which the procedure is based, the way it is implemented today by the IDF, and the way that the specific cases presented by petitioners, claimed to be IDF forces' violations of the procedure, had been dealt with.  Respondents stated that in all the cases brought up in the framework of the petition which raised suspicion of violation of the procedure, the military police (metzach) had begun an investigation, or an investigating officer had been appointed.

 

12.       Prior to the hearing of the petition, petitioners submitted (on June 23 2005) a motion to submit additional testimony, in which they wished to update the Court regarding the respondents' continued use of civilians protected under the Fourth Geneva Convention of 1949 as "human shields" and/or as hostages.  Attached to the motion was testimony of Palestinian civilians regarding three events which occurred in the months March and May 2005.  The final hearing in the petition took place (on June 23 2005) before Barak P, Cheshin V.P. and Beinisch J. (who replaced Mazza V.P., who had retired).  During the hearing, respondents stated that petitioners' claims regarding these three new cases were being examined.  In one case, military police investigation had commenced; in another case, a committee of investigation had not found a violation of the procedure; and in a third case, respondents were waiting for the decision of the Military Advocate General.  Respondents emphasized that the fact that a number of cases of violation of the procedure had been discovered over a period of years does not mean that the procedure itself is to be rejected.  During the hearing we heard, inter alia, a survey by the operations officer of the central command, regarding the operational importance of the "Early Warning" procedure, in preventing injury to Palestinian civilians.

 

C.        The Arguments of the Parties

 

13.       Petitioners claim that the procedure known as "Early Warning" is illegal, as it is at odds with the principles of international humanitarian law regarding the military activity of an occupying force in occupied territory.  It is, in fact, the use of a protected civilian as a "human shield".  The procedure puts the protected civilian in real and tangible danger.  It puts him at the pinnacle of military activity, the objective of which is arresting a person whom respondents themselves define as most dangerous.  Petitioners are of the opinion that the dimension of consent in the procedure, or lack of refusal on the part of the protected civilian, cannot absolve it of its illegality.  The protected civilian's consent is not true consent, and in any case is irrelevant.  The protected civilian cannot waive the rights granted him by international law, including the right not to be involved in the military activity of an occupying force.  It was further contended that the procedure creates a certain and tangible injury to the dignity of the protected civilian, since it is used against the side with which he naturally identifies.  It is likely even to cause him critical mental injury.  In this context, petitioners refer to the judgment of the International Court of Justice regarding the crimes committed in the former Yugoslavia, according to which use of prisoners for digging a trench for the military force is a cruel and inhuman use, and violates the prisoners' right to dignity.  Petitioners contend that various articles of the Fourth Geneva Convention of 1949 prohibit the "Early Warning" procedure, including articles 3, 8, 27, 28, 47 & 51 of that convention.  The use of the procedure is also prohibited, claim petitioners, by article 51(7) of the first protocol of the Geneva Convention of 1977.  Last, the decisions of the International Court of Justice regarding the crimes committed in the former Yugoslavia also require that the procedure be determined illegal. 

 

14.       Petitioners argue that one can learn from the procedure instructions themselves that the procedure endangers the civilian population, whereas respondents have a duty to refrain from causing harm to it.  The directive relates to situations which deteriorate into exchanges of gunfire, and to situations in which the individual is positioned in front of a military force (while knocking on the building door) in a manner which endangers him.  Petitioners point out that the procedure grants substantial discretion to military personnel, regarding the possibility of soliciting the local population's assistance.  The military discretion, claim petitioners, is regularly employed in violation of the interlocutory injunction.  Respondents continue to make use of Palestinian civilians, including as "human shields", during their operational activity and in order to achieve the objectives of that military activity, and even abuse the local population.  From this it can be learned that the military discretion on this issue cannot be relied upon.  The procedure broadcasts an inhuman message to soldiers, according to which instrumental use can be made of Palestinian civilians in order to succeed in the military activity, whose objective is the making of an arrest. 

 

15.       Petitioners submitted the expert opinion of Professor E. Benvenisti, according to which the "Early Warning" procedure does not fulfill the requirements of international humanitarian law.  Professor Benvenisti is of the opinion that the procedure is likely to endanger the lives of the Palestinian residents.  The danger is liable to stem from a response by those entrenching themselves in the building, or from a response by soldiers to the response of the former.  One must examine whether that danger is justified by legitimate reasons, and whether it is proportional.  In this context, Professor Benvenisti notes:

 

"The procedure describes a legitimate motivation for use of 'early warning' measures, since protection of those who are not combatants is, as mentioned, the duty of the army in combat.  What has yet to be examined is whether or not that means is proportional, that is to say, whether the same objective cannot be achieved without the use of the Palestinian residents.  It seems that on this point that the procedure raises difficulty, since the use of a simple audio amplification system would, prima facie, be an efficient enough means . . .

 

It is unclear whether the danger involved in using residents to relay warnings is equivalent to the saving of the lives of those who are believed to be in the building into which the army wishes to enter, and whom the army wishes to warn.  The uncertainty regarding the expected level of danger makes the exposure to the danger disproportionate" (clause 9 of the expert opinion).

 

Professor Benvenisti determines that the supposition that the procedure is intended to prevent injury to the military forces remains an open question.  He further explains that the requirement of receiving the local resident's consent to provide assistance does not change anything, in light of the large power imbalance between IDF soldiers and the residents, which turns the consent into consent which is coerced, or understood to be coerced.  In addition, the procedure does not include clear instructions to soldiers, how to decide between the alternative of using residents and other means of relaying warning.  Against this background, petitioners claim that the procedure is not legal, and is not proportional.

 

16.       Respondents plea that the arguments regarding the illegality and disproportionateness of the "Early Warning" procedure are to be rejected.  According to respondents, these arguments are unfounded and do not fit reality and international law.  Respondents point out the reality, in which IDF combats terrorists hiding among the civilian population.  Respondents recognize the restrictions upon them in the framework of such combat.  IDF soldiers are categorically forbidden to use civilians, qua civilians, as a "live shield" or as "hostages", for the purpose of protection against gunfire or attacks by the Palestinian side.  The army forces must perform a balancing between the need to arrest wanted persons and the need to protect the civilian population.  In the framework of this balancing, the IDF prefers to arrest terrorists instead of killing them, as permitted by the laws of war, while granting an effective early warning.  Against this background, the "Early Warning" procedure was formulated.  The procedure is intended primarily to prevent injury to innocent local residents.  In a great many cases there is no effective alternative to relaying a warning via a local resident.  According to respondents, past experience shows that soliciting the assistance of local residents in order to grant an effective early warning allows the making of arrests while substantially reducing the need to resort to means of force, which damage property and create danger to innocent civilians, and while reducing the possibility that gunfire exchanges, from which innocents are liable to be injured, will develop.  The use of the procedure leads to a reduction of the danger to civilians on site.  Its use is likely also to prevent injury to the wanted person himself and to IDF soldiers, objectives which are also legitimate, in and of themselves.  The attainment of these advantages, in a way that does not involve danger to the residents, is worthy, legal, and proportional.     

 

17.       Respondents contend that the use of the "Early Warning" procedure in appropriate cases sits well with the fundamental principles of international law.  Those principles require that during the planning of a military activity, every attempt be made to reduce the collateral damage caused as a result of the military activity to those who are not combatants, to the extent possible, under the circumstances.  In addition, pursuant to the rules of international law, an armed force which is about to undertake an activity liable to injure civilians must, to the extent possible, grant prior notice regarding the planned activity, in order to reduce the danger of injury to civilians.  International law does not prohibit receiving the assistance of a consenting local civilian, in order to warn other residents of an impending attack, if he is not exposed to danger as a result.  Au contraire: it is desirable, argue respondents, to grant an early warning before the attack, which is liable to injure the civilian population or damage civilian buildings which have been abused by wanted Palestinians.  Moreover, international law even permits forcing the relaying of a warning if necessary military considerations so require; however, the procedure does not go so far, as it requires the consent of the resident.  Respondents' position is, therefore, that in planning arrests, the military commander is permitted – and even required – to examine whether, under the circumstances, it is possible to reduce collateral damage to innocent persons and property, by soliciting the assistance of a local civilian, in circumstances which do not endanger him.

 

18.       Respondents further note that the approval for issuance of the "Early Warning" procedure was given by the Attorney General, after he was persuaded that such assistance by local consenting residents can save many lives, and primarily those of the local residents.  If the wanted person does not turn himself in, military personnel must indeed use force, which can harm the wanted person, those living in the house, property, and IDF soldiers.  All these, claim respondents, can be prevented when the procedure is used in the fitting circumstances.  The Attorney General was persuaded that the granting of warning by local residents will have a better effect than warning granted by the army forces.  Respondents contend that in the formulation of the procedure, the lessons from the case in which Abu Muhsan was killed were studied.  That case was an exception, and one cannot conclude from it that the directive is generally dangerous.  They further contend that the directive is proportional, and that in certain cases alternate means such as an audio amplification system cannot be used, as it can endanger the soldiers.

 

19.       Regarding cases in which the procedure was violated, respondents emphasize that the IDF views as severe any suspicion of violation of the procedure, and thoroughly examines the cases in which such suspicion arises.  Regarding all the cases mentioned in the petition in which suspicion of violation of the procedure arose, a military police investigation was initiated or an examining officer was appointed.  It was further stated that additional investigations of the military police were commenced regarding a number of complaints which were brought before the Military Advocate General personnel, outside the framework of the petition.  Some of the investigations are still pending.  In one case an IDF officer was indicted regarding an event in April 2004.  The officer was convicted, given a prison sentence to be served by way of military labor, lowered in rank, and expelled from his position.  On the other hand respondents noted that in hundreds of other cases in which the procedure was used, no complaints whatsoever were made regarding its use.  The single cases cannot lead to a conclusion that the procedure is illegal or unreasonable.  All they show is that the procedure was violated in isolated cases.

 

The Normative Framework

 

20.       An army in an area under belligerent occupation is permitted to arrest local residents wanted by it, who endanger its security (see HCJ 102/82 Tsemel v. The Minister of Defense, 37 (3) PD 365, 369; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57 (2) PD 349, 365).  In this framework – and to the extent that it does not frustrate the military action intended to arrest the wanted person, the army is permitted – and at times even required – to give the wanted person an early warning.  Thus it is possible to ensure the making of the arrest without injury to the civilian population (see regulation 26 of Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations); article 57(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter – The First Protocol); see also Fleck The Handbook of Humanitarian Law in Armed Conflicts (1995) 171, 223 (hereinafter – Fleck); rule 20 of 1 Customary International Humanitarian Law: Rules (2005) 62 (hereinafter – International Humanitarian Law)).

 

21.       Just as it is clear that an army is authorized to arrest a wanted person who endangers security, so is it clear that the army is not permitted to use local residents as a "human shield" (see article 28 of IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention); article 51(7) of The First Protocol; see also Fleck, at p. 218)).  Pictet correctly noted that the use of people as a "human shield" is a "cruel and barbaric" act (see J. Pictet Commentary IV Geneva Convention (1958) 208; rule 97 of International Humanitarian Law).

 

22.       Is the army permitted to make a local resident relay an "early warning" to a wanted person in a place besieged by the army, against his will?  All agree that such a thing is prohibited (compare regulation 23(4) of The Hague Regulations; article 51 of The Fourth Geneva Convention; Pictet, at p. 292; Fleck, at p. 252).  Indeed, the "Early Warning" procedure explicitly states that the assistance of a local Palestinian resident can be solicited in order to relay an early warning only when that resident has consented to provide such assistance.  It is also agreed by all that early warning is not to be relayed by a local resident, if doing so will endanger him.

 

23.       However, what is the law regarding the solicitation of a local resident's assistance, for the purpose of relaying an "early warning" according to the procedure for doing so, when that resident gives his consent, and damage will not be done to him by relaying the warning?  Let it be said immediately: no explicit provision applying to that issue, which would contain a solution to our problem, is to be found (see R. Otto "Neighbors as Human Shields? The Israel Defense Forces 'Early Warning Procedure' and International Humanitarian Law" 86 Int'l Rev. Red Cross 771, 776 (2004)).  The solution to our question requires a balancing between conflicting considerations.  On the one hand, is the value of human life.  Use of the "Early Warning" procedure is intended to prevent the need to arrest a wanted person through use of force.  In this regard, the procedure is intended to prevent damage to the local residents who are in the same place as the wanted person.  Indeed, safeguarding of the lives of the civilian population is a central value in the humanitarian law applicable to belligerent occupation (see article 27 of The Fourth Geneva Convention; HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) PD 385, 39X; Fleck, at p. 212).  The legality of the "Early Warning" procedure might draw its validity from the general duty of the occupying army to ensure the dignity and security of the civilian population.  It also sits well with the occupying army's power to protect the lives and security of its soldiers.  On the other hand stands the occupying army's duty to safeguard the life and dignity of the local civilian sent to relay the warning.  That is certainly the case when he does not consent to take upon himself the task he has been given, and when its performance is likely to cause him damage.  But that is also the case when he gives his consent, and when performance of the role will cause him no damage.  That is so not only since he is not permitted to waive his rights pursuant to the humanitarian law (see article 8 of The Fourth Geneva Convention; Pictet, at pp. 72, 74), but also since, de facto, it is difficult to judge when his consent is given freely, and when it is the result of overt or subtle pressure.

 

24.       In balancing between these conflicting considerations, which shall prevail?  In my opinion, the considerations in favor of forbidding the army from using a local resident prevail.  At the foundation of my view lie a number of principled reasons.  First, a basic principle, which passes as a common thread running through all of the law of belligerent occupation, is the prohibition of use of protected residents as a part of the war effort of the occupying army.  The civilian population is not to be used for the military needs of the occupying army (see Fleck, at p. 218).  They are not to be "volunteered" for cooperation with the army (see regulation 23(b) of The Hague Regulations and article 51 of The Fourth Geneva Convention; see also Pictet, at p. 292).  From this general principle is derived the specific prohibition of use of local residents as a "human shield".  Also derived from this principle is the prohibition of use of coercion (physical or moral) of protected persons in order to obtain intelligence (article 31 of The Fourth Geneva Convention; Pictet, at p. 219).  It seems to me that prohibiting use of local residents for relaying warnings from the army to those whom the army wishes to arrest should also be derived from this general principle.  Second, an additional principle of the humanitarian law is that all is to be done to separate between the civilian population and military activity (see Fleck, at p. 169).  The central application of this rule is the duty to distance innocent local residents from the zone of hostilities (see rule 24 of International Humanitarian Law).  This rule calls for an approach, according to which a local resident is not to be brought, even with his consent, into a zone in which combat activity is taking place.  Third, in light of the inequality between the occupying force and the local resident, it is not to be expected that the local resident will reject the request that he relay a warning to the person whom the army wishes to arrest.  A procedure is not to be based upon consent, when in many cases the consent will not be real (see Fleck, at p. 252).  The situation in which such consent would be requested should be avoided.  Last, one cannot know in advance whether the relaying of a warning involves danger to the local resident who relays it.  The ability to properly estimate the existence of danger is difficult in combat conditions, and a procedure should not be based on the need to assume a lack of danger, when such an assumption is at times unfounded.  On this issue, one must consider not only the physical danger of damage from gunfire originating in the wanted person's location, or from various booby-traps, but also the wider danger which a local resident who "collaborates" with the occupying army can expect.         

 

25.       These considerations lead me to the conclusion that the "Early Warning" procedure is at odds with international law.  It comes too close to the normative "nucleus" of the forbidden, and is found in the relatively grey area (the penumbra) of the improper.

 

            The result is that we turn the order nisi into an order absolute, in the following way: we declare that the "Early Warning" procedure contradicts international law.

 

Vice President M. Cheshin:

 

            The subject is a difficult one.  Most difficult.  So difficult is it, that a judge might ask himself why he chose the calling of the judiciary, and not of another profession, to be busy with.  Woe is me, for I answer to my creator; woe is me, with my conflicting inclinations (see Babylonian Talmud, Brachot, 61, 1).  No matter which solution I choose, the time will come that I will regret my choice.  Indeed, there is no clear legal rule to show us the way, and I shall decide according to my own way of legal reasoning.  The present issue is quite similar to the "ticking bomb" issue (HCJ 5100/94 The Public Committee Against Torture in Israel v. The Government of Israel, 53 (4) PD 817), where interests and values of the first degree stood opposite each other, and deciding which interests and values would prevail, and which interests would retreat, was hard – unbearably hard.

 

2.         Professor Eyal Benvenisti wrote, in the conclusion of his expert opinion which lies before us:

 

"The 'early warning' procedure is at odds with the rules of international humanitarian law dealing with the protection of civilians and others removed from participation in combat, from unnecessary dangers of war.  These are cogent rules which obligate the agencies of the State of Israel and cannot be stipulated out.

 

The question whether the danger is unnecessary or not is to be examined according to the standards of the worthy objective, and of the proportionality of the means to realize it.  The 'Early Warning' procedure is intended to advance a worthy objective.  However, the means to realize it – use of Palestinian residents to relay warnings – is not proportional, as it is not clear whether it is effective, why other alternatives which do not involve use of local civilians (like a loudspeaker or other means of amplification) are not feasible or preferable, or whether the danger to the resident relaying the warning is substantially less than the danger to the civilians being held together with those entrenching themselves inside the building; and there are no clear instructions to soldiers how to choose between the alternative of use of residents and other means of warning."

 

            Professor Benvenisti raises various difficult questions, but to all of these difficult questions - the state has responded with answers.  The summary of the answers is: and what shall be the law when all the difficult questions have been answered to our satisfaction?  That is to say, when, under the circumstances, soliciting a local resident's aid is the most effective means, or the only means, remaining before violently storming the house, and when the use of a loudspeaker and of other means of amplification were unproductive?  Regarding the question whether the danger to the warning resident is substantially less than the danger to which the residents in the building are exposed, the state replies that, according to the procedure, it is forbidden to be aided by a resident if the commander of the force believes that he is liable to be exposed to danger due to his consent to the army's request, and thus, even though the resident has granted his consent; and regarding the lack of clear instructions how to decide between alternatives, it seems that the procedure is sufficiently detailed, and can, in any case, be improved and perfected.

 

3.         The basic assumption is that the army is about to storm the building by force, and that the army, in its manner and in the manner of any army, may, and even almost certainly will, injure those in the house, including even the family members living in the house.  Can we decisively say that being aided, in good faith, by a neighbor, is disproportionate in all cases?  In any circumstances whatsoever?

 

Here he is, that dangerous terrorist whose hands have become covered with blood, and whose plans are only evil.  The terrorist is hiding out in the house, and the order is to apprehend him "alive or dead".  That order is uncontroversial, and the question in merely what shall be done, and what shall not be done, to carry out the order.  Suddenly the father of the family living in the house appears on the scene.  The father had previously gone to the store to buy food for his family, and he now returns to his house, which is surrounded by army personnel.  And in the house are his wife and his eight children.  The startled and fearful father hears whatever he hears from the army personnel, and he immediately agrees to the army's offer – it might even be his own request – that he call his family to leave the house, all according to the written procedure.  Yet here we forbid the army from allowing the father to so protect his family.  Indeed, it is not so in every case.  However, such a case -  or a similar case – can occur.

 

4.         Moreover, our assumption is that we have reached the last resort: that the army has made use of all other means at its disposal - excepting violent storming of the house – and that the terrorist has not surrendered.  We thus stand before the following choice: being aided by the father, who will warn his family, or storming the house, involving mortal danger to the residents of the house and to the soldiers.  Non-recognition of the procedure in such circumstances is by no means simple.

 

5.         And if despite all these things that I have written, I shall concur in the opinion of the President – it is because I have considered the formula adopted in The Public Committee Against Torture in Israel case (see id., starting at p. 840).  The formula is one of ex ante and ex post, and for our purposes is applicable to an even greater degree.  And it is even possible that life will teach us otherwise, and that our conclusion will come to be changed.

 

6.         To conclude: subject to what I have written above, I concur in the opinion of President Barak.

 

7.         Meanwhile, I have read the opinion of my colleague Justice Beinisch, and I would wholeheartedly sign my name by each and every one of her comments.  There are two reasons which strengthen our conclusion.  The first reason can be called "the written rule versus reality".  However clear and clean the written rule may be, we must not forget that it is carried out, de facto, in the field, outside, under pressure, in tense circumstances, in conditions of mortal danger – to residents and soldiers.  With any slight deviation from the directive, misunderstanding, or incorrect reading of the conditions in the field, we have strayed off the proper road onto the forbidden shoulders – we have slid from the permitted over to the forbidden.  The temptation is great, and the justification will be easily found.  Indeed, as the intensity of the danger rises, so rises the intensity of the temptation – in field conditions – to deviate from the procedure.

 

The second reason is found in routine, which awaits us around the bend.  Routine, according to its very nature, deteriorates the sensitivity and caution needed to perform the procedure, and the concern that the special and rare will become regular and routine – even bureaucratic – is great.  This is the same difficulty we came upon in The Public Committee Against Torture in Israel case, and in the "ticking bomb" issue.  Yet it is the ex ante and ex post formula, limited as it may be, which is likely to assist us, even if only partially.

 

Justice D. Beinisch:

 

            I concur in the judgment of President Barak, and will add a bit of my own only to emphasize the main unacceptable aspects, in my opinion, of the "Early Warning" procedure presently discussed. 

 

1.         The issue placed before us in this petition is one of the most difficult issues to come before us in the reality in which we have found ourselves in recent years.  The difficulty is found in the fact the petition deals with the way to safeguard human life during military activity, in an area held under belligerent occupation, and is interwoven with the discretion of the military commander in fulfilling his duties.  It should be recalled that the primary assumption of our discussion is that we are dealing with the safeguarding of human life at the time of legitimate military activity whose objective is the arrest of a wanted person who endangers the security of the region and the security of the civilians and the soldiers.  An additional assumption is that the military commander of the area held under belligerent occupation, and the commanders acting on his behalf and in his name, are the ones charged with the safety and security of all the residents in the area, including the security of the very protected resident who is asked to assist IDF forces according to the procedure, and belongs to the civilian population.  In the background of the case before us is found, therefore, the assumption that the task and the weighty responsibility of safeguarding the lives and bodily integrity of the local population, and of IDF soldiers operating in the occupied territory in order to ensure security in it, is cast upon the military commander.  Another uncontested primary assumption is that the military commander and those who obey him must honor the rules of international law and the constitutional principles of our legal system.  Our judicial review of the legality of procedures meant to safeguard human life are anchored in these primary assumptions.

 

2.         At first this petition was submitted arguing that during its military activity in the area, the IDF employs a practice prohibited by the fundamental norms of international and constitutional law, by making use of the civilian population as a "live shield" for the forces in combat.  In their response to the original petition, respondents already clarified unequivocally that they recognize that the forces operating in the field are categorically forbidden from using Palestinian residents as a "live shield" or as "hostages", and that involving local residents in any activity exposing them to danger to life or limb is prohibited.  As a result of that unequivocal declaration, respondents claimed that they wish to enact clear and legitimate instructions, which would ensure that the military forces operating in the field will act legally, regarding the prevention of mortal danger during operational activity.  In the existing circumstances, respondents were permitted to present us with the new detailed procedure which they wish to enact in the army in order to prevent use of a forbidden practice, and to lay out rules to ensure that IDF soldiers will not act illegally.  By the end of the proceedings, however, the original petition had undergone metamorphosis, and came to be directed against the "Early Warning" procedure, which the army was using as part of a declared agenda of avoiding the forbidden practice of using local residents as a "live shield" or as "hostages".

 

3.         According to respondents' argument, the purpose of the procedure is to formalize and detail the possibility of soliciting the assistance of local residents in order to minimize the danger of injury to innocent civilians, and even to the wanted persons themselves, during operational activity; the procedure is also intended to ensure that the residents of the house in which the wanted terrorist is hiding out will not be injured during the operational-military arrest, all exclusively in the framework of the permissible, and according to the principles of public international law, which charge the army holding the territory with the duty to protect the local residents and to prevent mortal danger to them.

 

4.         The question which we must decide is whether the enacted procedure is in fact legal; in other words, whether the procedure can ensure the achievement of the worthy purpose of safeguarding the lives of the residents, through fitting and worthy means.  As explained in the judgment of my colleague the President, in which the Vice President, Justice M. Cheshin, concurred, the answer to that question is negative.  The said procedure cannot stand, due to the fact that it permits the use of a disproportionate means, and therefore cannot prevent the unacceptable practice which respondents themselves wish to prevent.  The main reason for that, in my opinion, is that de facto, the procedure does not stop the forbidden practice of using local residents in order to aid army forces, and is even liable to endanger the lives of those residents who are asked to provide such assistance.  The gap between the prohibition, which the respondents recognize, and the permission, which can be enacted according to the discretion of the military commander, is narrow and close, and is no different, in essence, from the sweeping prohibition determined in the norms of international law.  Moreover, even if the procedure were legal, the danger of sliding into the practice forbidden by a categorical prohibition is inherent in the means permitted by the procedure. 

 

5.         Respondents emphasized before us that the procedure revolves around two central axes.  The first is that the mission of assisting in "early warning" is not to be cast upon a resident, unless he has given his consent; the other is that the mission of "early warning" is not to be cast upon a local resident if it is likely to expose him to danger to life or limb.  It seems to me that both these axes are inapplicable, and therefore cannot serve as anchor for the entire procedure.

 

            Regarding the element of the local resident's consent to assist the forces in combat, which is a necessary condition for receiving such assistance, it can be determined that there is no permissible way to obtain such consent.  Beyond the prohibition, anchored in principles of international law, of involving the protected population in the war effort of the army holding the territory, it is difficult to see how, in the circumstances present in the area, the required consent can be obtained.  The validity of consent is conditional upon it being given of free will.  When a local resident is asked by a military commander, accompanied by armed army forces, to assist in an act performed against the population to which he belongs, even if the request is made for a desirable objective, the resident has no real option of refusing the request, and therefore his consent – is not consent.

 

            Regarding the danger to the resident asked to assist army forces, there is no way to ensure that his life is not being endangered by involving him in the activity – activity with which he has no connection, and into which he is thrown against his best interest.  Naturally, in the operational activity, the military commander has wide discretion to make decisions in the field, and he must do so under pressure.  The burden is on him, to estimate the level of danger to which the local resident is exposed, and at the same time to estimate the danger to those in the house against which the activity is directed.  And of course, the weighty burden of minimizing the danger to the lives of his soldiers rests on his shoulders.  In these circumstances, the danger to the life of the resident is a real danger which does not stand in proper proportion to the purpose of the procedure – minimizing loss of the lives of the innocent residents – while severely violating the free will of the resident asked to assist army forces, and no less, violating his dignity as a human being.

 

6.         Thus, the necessary conclusion is that the violation of the principles protected in international law is reflected, as discussed, in the instructions of the procedure, which, on its face, is not proportional.  In addition to that, it is impossible to escape the impression that the reality described by petitioners, which was not categorically denied by respondents, shows that the procedure, with all the qualifications in it - even if it was legal, and I am not of the opinion that it is – is not capable of being implemented, de facto.  As it turns out, there are deviations from the procedure in the field; nor does the use made of local residents for "early warning" remain within the restrictions set out in the procedure.  Although respondents' counsel did not confirm before us the severe events which were described by petitioners, he did confirm that investigations are underway regarding suspected severe cases which were raised by petitioners, and also confirmed that additional complaints, which were not raised at all in the petition, are being investigated.  The daily reality in the field is difficult.  The conditions set out in the procedure, aside from being faulty in and of themselves, allow a slide down the slippery slope, which causes stark violations of the rules of international law, and of the constitutional principles of our legal system.  The army must do all in its power to prevent the possibility that a detailed and official procedure will create gaps which will lead to a deterioration of the operations in the field to unequivocal situations of illegality.  The procedure contains such a gap, and thus must be annulled.

 

            Therefore, I concur in the judgment of President Barak, and in his reasoning. 

 

Decided according to the judgment of President A. Barak.

 

Given today, 3 Tishrei 5766 (October 6 2005). 

 

 

 

             

  

 

 

 

 

 

 [ק1]אכן, כך הם קוראים לעצמם באנגלית.

HCJ 7052/03

Adalah Legal Centre for Arab Minority Rights in Israel and others

v

1.         Minister of Interior

2.         Attorney-General

3.         Jewish Majority in Israel

4.         Victims of Arab Terror

5.         Shifra Hoffman

HCJ 7102/03

MK Zahava Gal-On and others

v

Attorney-General and others

HCJ 7642/03

Shama Mahmud Musa and another

v

Minister of Interior and others

HCJ 7643/03

Ibrahim Alyon others

v

Minister of Interior and others

HCJ 8099/03

Association for Civil Rights in Israel

v

Minister of Interior and others

HCJ 8263/03

Rami Mohammed Askafi and others

v

Minister of Interior and others

 

HCJ 10650/03

Mirfat Taysir Abed Al Hamid and others

v

Minister of Interior and others

 

 

The Supreme Court sitting as the High Court of Justice

[14 May 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin
and Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis,
M. Naor, S. Joubran, E. Hayut, Y. Adiel

 

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

 

Facts: Since September 2000, Palestinians have mounted a barrage of terror attacks on the State of Israel and its citizens and residents. The intensity of these attacks led the government to adopt various measures to protect the security and safety of Israeli citizens and residents. Because some of the terror attacks were perpetrated with the assistance of persons who were originally Palestinians living in the occupied territories and had received permission to live in Israel within the framework of family reunifications, the government decided in 2002 to stop giving permits to Palestinians from the occupied territories to live in Israel. This decision was subsequently passed by the Knesset into legislation in the form of the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (‘the law’); the law was valid for one year and was extended several times.

Petitions were filed in the High Court of Justice against the constitutionality of the law. In the course of the legal proceedings, the Knesset amended the law and introduced various concessions. These mainly allowed Palestinians from the occupied territories to apply to live in Israel within the framework of family reunifications, if the applicant was under the age of 14 or over the age of 35 (for a man) or 25 (for a woman).

The main question raised by the petitions is whether a constitutional right has been violated by the law, which, even in its amended, more lenient form, contains a blanket prohibition against allowing Palestinians between the ages of 14 and 35 (for a man) or 25 (for a woman) from entering Israel for the purposes of family reunifications.

The court was therefore called upon to consider whether the blanket prohibition of family reunifications (with Palestinians of certain ages) violates constitutional rights, and if it did, whether the violation of those rights satisfies the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, and was therefore constitutional. The blanket prohibition in the law was considered with reference to the position that prevailed before the law was enacted, whereby applications of Palestinians to live in Israel were considered on an individual basis, with a view to whether the applicant presented a risk to the security and safety of the Israeli public.

 

Held: (Minority opinion — President Barak, Justices Beinisch, Joubran, Hayut, Procaccia) The law violates two constitutional basic rights. It violates the right to family life, which is a derivative of human dignity, since the right to family life means the right of an Israeli citizen or resident to live with his family in Israel. The law also violates the right to equality, since only Israeli Arabs marry Palestinians from the occupied territories and therefore the only persons harmed by the law de facto are Israeli Arabs. These violations of constitutional rights lead to the law being unconstitutional, since the law does not satisfy the last condition of the limitations clause in the Basic Law: Human Dignity and Liberty, namely that the violation of the constitutional rights should not be excessive. The blanket prohibition in the law against all Palestinians between certain ages provides somewhat more security than the system of individual checks, but it increases the violation of constitutional rights considerably. In view of the small increase of security and the large increase in the violation of rights, the law is disproportionate in adopting a blanket prohibition rather than a system of individual checks. It is unconstitutional and therefore void.

(Majority opinion — Vice-President Cheshin, Justices Grunis, Naor) Like other countries around the world, Israel does not recognize a constitutional right that a person may have foreign members of his family immigrate to Israel. Such a right exists only to the extent that statute grants it. Therefore the law does not violate a constitutional right to human dignity. The law also does not violate the constitutional right to equality. The fact that the Palestinian Authority is de facto waging a war or quasi-war against Israel makes the residents of the territories enemy nationals. The law, in prohibiting family reunifications with enemy nationals, makes a permitted distinction between family reunifications with persons who are not enemy nationals, and family reunifications with persons who are enemy nationals. This is a permitted distinction in view of the current circumstances, and therefore the law is not discriminatory. The law was therefore constitutional. Nonetheless, the state should consider adding to the law a provision allowing exceptions in special humanitarian cases.

(Majority opinion — Justice Adiel) The law violates the constitutional right to family life which is a part of human dignity, but not the constitutional right to equality. Notwithstanding, in view of the bloody conflict between the Palestinians and Israel, the violation of the constitutional right is proportionate. Therefore the law is constitutional.

(Majority opinion — Justice Rivlin) There is no need to consider the petitions since the law is about to expire and it cannot be known in what format, if at all, the Knesset will re-enact it. The question is therefore moot. Subject to this, the law does violate a constitutional right to family life. However, the conflicting national security interest is really, in this case, made up of the rights of all the individual members of the public to life and security. In view of this, the law satisfies the proportionality test, and is therefore constitutional.

(Majority opinion — Justice Levy) The law violates both the right to family life and the right to equality. With regard to the conditions of the limitations clause, the main problem lies in the requirement that the law should adopt the least harmful measure. The blanket prohibition will have to be replaced by an individual check of each applicant for family reunification. In this check, in view of the clear hostility of the Palestinian Authority, applicants should be regarded to have a presumption of dangerousness, which they must rebut. The applicant should not be present illegally in Israel while the application is pending and he should be required to declare his loyalty to the state of Israel. Notwithstanding, since declaring the law void would create a void in security arrangements, the law should be allowed to stand, but if changes are not made, the law will be unlikely to satisfy judicial scrutiny in the future.

 

Petition denied, by majority opinion (Vice-President Cheshin and Justices Rivlin, Levy, Grunis, Naor and Adiel), President Barak and Justices Beinisch, Procaccia, Joubran and Hayut dissenting.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1, 1A, 2, 3, 4, 5, 6(a), 7(a), 8, 12.

Basic Law: the Government, ss. 50, 50(d).

Basic Law: the Knesset, s. 38.

Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, ss. 2, 3, 3A, 3A(1), 3A(2), 3B, 3B(2), 3B(3), 3D, 3E, 4, 5.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5764-2004.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5765-2005.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order (no. 2), 5765-2005.

Citizenship Law, 5712-1952, ss. 4, 4A(1), 4A(2), 5(a), 7.

Entry into Israel Regulations, 5734-1974, r. 12.

Law of Return, 5710-1950, ss. 2(b)(3), 4A.

Prevention of Terror Ordinance, 5708-1948.

Providing Information on the Effect of Legislation on Children’s Rights Law, 5762-2002.

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

[10]  HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

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

[12]  HCJ 4128/02 Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[13]  HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

[14]  HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2005] (1) IsrLR 340.

[15]  CrimApp 5934/05 Malka v. State of Israel [2005] IsrSC 59(2) 833.

[16]  HCJ 316/03 Bakri v. Israel Film Council [2003] IsrSC 58(1) 249; [2002-3] IsrLR 487.

[17]  CA 238/53 Cohen v. Attorney-General [1954] IsrSC 8 4; IsrSJ 2 239.

[18]  CA 337/62 Riezenfeld v. Jacobson [1963] IsrSC 17(2) 1009; IsrSJ 5 96.

[19]  CA 488/77 A v. Attorney-General [1978] IsrSC 32(3) 421.

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

[21]  LFA 377/05 A v. Biological Parents (not yet reported).

[22]  LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[23]  CFH 7015/94 Attorney-General v. A [1996] IsrSC 50(1) 48.

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

[25]  AAA 4614/05 State of Israel v. Oren (not yet reported).

[26]  LCA 4575/00 A v. B [2001] IsrSC 55(2) 321.

[27]  HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[28]  HCJ 114/79 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

[29]  HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2002] IsrSC 56(5) 393.

[30]  HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [2003] IsrSC 57(3) 31.

[31]  HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

[32]  HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

[33]  HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[34]  HCJ 2618/00 Parot Co. Ltd v. Minister of Health [2001] IsrSC 55(5) 49.

[35]  HCJ 2671/98 Israel Women’s Network v. Minister of Labour and Social Affairs [1998] IsrSC 52(3) 630.

[36]  HCJ 392/72 Berger v. Haifa District Planning and Building Committee [1973] IsrSC 27(2) 764.

[37]  HCJ 328/88 Avitan v. Israel Land Administration [1989] IsrSC 43(4) 297.

[38]  HCJ 6698/95 Kadan v. Israel Land Administration [2000] IsrSC 54(1) 258.

[39]  HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [2000] IsrSC 54(2) 164.

[40]  HCJ 6924/93 Association for Civil Rights in Israel v. Government of Israel [2001] IsrSC 55(5) 15.

[41]  HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [2006] (1) IsrLR 105.

[42]  HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[43]  HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [1958] IsrSC 12 264.

[44]  HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

[45]  CA 333/85 Aviel v. Minister of Labour and Social Affairs [1991] IsrSC 45(4) 581.

[46]  CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [1991] IsrSC 45(4) 529.

[47]  CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998‑9] IsrLR 409.

[48]  LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

[49]  HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

[50]  CA 7155/96 A v. Attorney-General [1997] IsrSC 51(4) 160.

[51]  HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (not yet reported).

[52]  HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[53]  HCJ 4330/93 Ganem v. Tel-Aviv District Committee, Bar Association [1996] IsrSC 50(4) 221.

[54]  HCJ 205/94 Nof v. Ministry of Defence [1996] IsrSC 50(5) 449; [1997] IsrLR 1.

[55]  HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[56]  CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[57]  HCJ 3512/04 Shezifi v. National Labour Court (not yet reported).

[58]  CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[59]  CA 5587/93 Nahmani v. Nahmani [1993] IsrSC 49(1) 485; [1995-6] IsrLR 1.

[60]  CFH 6041/02 A v. B [2004] IsrSC 58(6) 246.

[61]  CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[62]  HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3) 353.

[63]  CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[64]  HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [1994] IsrSC 48(5) 441.

[65]  HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

[66]  HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[67]  HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[68]  HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [1998] IsrSC 52(2) 193.

[69]  HCJ 1074/93 Attorney-General v. National Labour Court [1995] IsrSC 49(2) 485; [1995-6] IsrLR 149.

[70]  HCJ 678/88 Kefar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501.

[71]  FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[72]  HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

[73]  HCJ 6051/95 Recanat v. National Labour Court [1997] IsrSC 51(3) 289.

[74]  HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[75]  HCJ 1000/92 Bavli v. Great Rabbinical Court [1994] IsrSC 48(2) 221.

[76]  HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [2005] IsrSC 58(5) 412; [2005] (1) IsrLR 268.

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

[78]  EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[79]  LCA 9041/05 Imrei Hayyim Registered Society v. Wiesel (decision of 30 January 2006, not yet reported).

[80]  HCJ 9333/03 Kaniel v. Government of Israel (not yet reported).

[81]  LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[82]  HCJ 4676/94 Meatreal Ltd v. Knesset [1994] IsrSC 50(5) 15.

[83]  HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [2003] IsrSC 57(1) 750.

[84]  HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[85]  HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

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

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

[88]  CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 54(1) 721.

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

[90]  HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 49.

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

[92]  HCJ 6226/01 Indor v. Mayor of Jerusalem [2003] IsrSC 57(2) 157.

[93]  HCJ 490/97 Tenufa Manpower Services and Holdings Ltd v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[94]  HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 358; [2004] IsrLR 1.

[95]  HCJ 278/73 Horeh v. Mayor of Tel-Aviv-Jaffa [1974] IsrSC 28(1) 271.

[96]  HCJ 6249/96 Israel Contractors and Builders Federation v. Sasson [1998] IsrSC 52(2) 42.

[97]  HCJ 552/04 Guzman v. State of Israel, TakSC 2005(3) 4.

[98]  HCJ 6268/00 Kibbutz HaHoterim Agricultural Cooperative Society v. Israel Land Administration [2001] IsrSC 55(5) 640.

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

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

[101] EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

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

[103] HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [1987] IsrSC 41(1) 197.

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

[105] HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [1989] IsrSC 43(2) 22; IsrSJ 10 229.

[106] CrimA 2831/95 Alba v. State of Israel [1996] IsrSC 50(5) 221.

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

[108] HCJ 8172/02 Ibrahim v. IDF Commander in West Bank (not yet reported).

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

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

[111] HCJ 482/71 Clark v. Minister of Interior [1973] IsrSC 27(1) 113.

[112] HCJ 754/83 Rankin v. Minister of Interior [1984] IsrSC 38(4) 113.

[113] HCJ 4156/01 Dimitrov v. Minister of Interior [2002] IsrSC 56(6) 289.

[114] HCJ 2527/03 Assid v. Minister of Interior [2004] IsrSC 58(1) 139.

[115] HCJ 758/88 Kendall v. Minister of Interior [1992] IsrSC 46(4) 505.

[116] HCJ 1689/94 Harari v. Minister of Interior [1997] IsrSC 51(1) 15.

[117] HCJ 9778/04 Alwan v. State of Israel (not yet reported).

[118] HCJ 282/88 Awad v. Prime Minister [1988] IsrSC 42(2) 424.

[119] HCJ 100/85 Ben-Israel v. State of Israel [1985] IsrSC 39(2) 45.

[120] HCJ 740/87 Bentley v. Minister of Interior [1990] IsrSC 44(1) 443.

[121] HCJ 576/97 Scharf v. Minister of the Interior (not yet reported).

[122] HCJFH 8916/02 Dimitrov v. Minister of Interior (unreported).

[123] HCJ 6708/04 Badar v. Minister of Interior (not yet reported).

[124] HCJ 8986/04 Riash v. Minister of Interior (not yet reported).

[125] HCJ 8030/03 Samuilov v. Minister of Interior (not yet reported).

[126] HCJ 3403/97 Ankin v. Minister of Interior [1997] IsrSC 51(4) 522.

[127] CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[128] HCJ 24/01 Ressler v. Knesset [2002] IsrSC 56(2) 699.

[129] HCJ 4370/01 Lipka v. Minister of Interior [2003] IsrSC 57(4) 920.

[130] HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [1995] IsrSC 49(4) 661.

[131] LCrimA 8472/01 Maharshak v. State of Israel [2005] IsrSC 59(1) 442.

[132] HCJ 2208/02 Salama v. Minister of Interior [2002] IsrSC 56(5) 950.

[133] AAA 9993/03 Hamdan v. Government of Israel (not yet reported).

[134] HCJ 2455/95 Dragma v. Minister of Interior (unreported).

[135] HCJ 7206/96 Mansour v. Minister of Interior (unreported).

[136] HCJ 1227/98 Malevsky v. Minister of Interior [1998] IsrSC 52(4) 690.

[137] HCJ 442/71 Lansky v. Minister of Interior [1972] IsrSC 26(2) 337.

[138] HCJ 7061/05 A v. Minister of Interior (not yet reported).

[139] HCJ 5304/02 Israel Victims of Work Accidents and Widows of Victims of Work Accidents Association v. State of Israel [2005] IsrSC 59(2) 135.

[140] HCJ 6845/00 Niv v. National Labour Court [2002] IsrSC 56(6) 663.

[141] HCJ 6971/98 Paritzky v. Government of Israel [1999] IsrSC 53(1) 763.

[142] HCJ 4915/00 Communications and Productions Network Co. (1992) Ltd v. Government of Israel [2000] IsrSC 54(5) 451.

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

[144] CrimA 3439/04 Bazak (Bouzaglo) v. Attorney-General (not yet reported).

[145] CA 621/69 Nissim v. Euster [1970] IsrSC 24(1) 617.

[146] CA 79/83 Attorney-General v. Shukran [1985] IsrSC 39(2) 690.

[147] CA 6434/00 Danino v. Mena [2002] IsrSC 56(3) 683.

[148] CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[149] CA 6106/92 A v. Attorney-General [1994] IsrSC 489(2) 833.

[150] CA 549/75 A v. Attorney-General [1976] IsrSC 30(1) 459.

[151] CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [1994] IsrSC 48(3) 705; [1992-4] IsrLR 369.

[152] EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [2003] IsrSC 57(4) 1.

[153] HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [1991] IsrSC 55(4) 800.

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

[155] HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [1992] IsrSC 52(3) 346.

[156] HCJ 7862/04 Abu Dahar v. IDF Commander in Judaea and Samaria [2005] IsrSC 59(5) 368; [2005] (1) IsrLR 136.

[157] HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[158] HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

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

[160] HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46.

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

[162] LCA 6709/98 Attorney-General v. Moledet-Gesher-Tzomet List for Elections to Upper Nazareth Local Authority [1999] IsrSC 53(1) 351.

[163] HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

[164] HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[165] HCJ 494/03 Physicians for Human Rights v. Minister of Finance [2005] IsrSC 59(3) 322.

[166] HCJ 8093/03 Artmeyer v. Ministry of Interior (not yet reported).

[167] HCJ 4906/98 Free People Society for Freedom of Religion, Conscience, Education and Culture v. Ministry of Housing [2000] IsrSC 54(2) 503.

[168] HCJ 680/88 Schnitzer v. Chief Military Censor [1988] IsrSC 42(4) 617; IsrSJ 9 77.

[169] CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[170] HCJFH 4418/04 Government Press Office v. Saif (not yet reported).

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

[172] HCJ 5503/94 Segal v. Knesset Speaker [1997] IsrSC 51(4) 529.

[173] HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

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

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

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

[177] CA 506/88 Shefer v. State of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR 170.

[178] HCJ 4827/05 Man, Nature and Law Israel Environmental Protection Society v. Minister of Interior (not yet reported).

[179] HCJ 7190/05 Lobel v. Government of Israel (not yet reported).

[180] HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting [2004] IsrSC 58(3) 65; [2004] IsrLR 20.

[181] HCJ 6126/94 Szenes v. Broadcasting Authority [1999] IsrSC 53(3) 817; [1998-9] IsrLR 339.

[182] HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[183] HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

 

American cases cited:

[184]  Schenck v. United States, 249 U.S. 47 (1918).

[185]  Korematsu v. United States, 323 U.S. 214 (1944).

[186] Roberts v. United States Jaycees, 468 U.S. 609 (1984).

[187] Griswold v. Connecticut, 381 U.S. 479 (1965).

[188] Loving v. Virginia, 388 U.S. 1 (1967).

[189] Lawrence v. Texas, 123 S. Ct. 2472 (2003).

[190] Fiallo v. Bell, 430 U.S. 787 (1977).

[191] Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990).

[192] Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal (2006) (not yet reported, decision of 21 February 2006).

[193] Aptheker v. Secretary of State, 378 U.S. 500 (1964).

[194] Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).

[195] Sugarman v. Dougall, 413 U.S. 634 (1973).

[196] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

[197] City of Richmond v. Carson, 488 U.S. 469 (1989).

[198] Johnson v. City of Cincinnati, 310 F.3d 484 (2002).

[199] Gratz v. Bollinger, 539 U.S. 244 (2003).

[200] Grutter v. Bollinger, 539 U.S. 982 (2003).

[201] Wisconsin v. Yoder, 406 U.S. 205 (1972).

[202] Railway Express Agency v. New York, 336 U.S. 106 (1949).

[203] Knauff v. Shaughnessy, 338 U.S. 537 (1949).

[204] Ekiu v. United States, 142 U.S. 651 (1892).

[205] Landon v. Plasencia, 459 U.S. 21 (1982).

[206] Moore v. East Cleveland, 431 U.S. 494 (1977).

[207] United States v. Carroll Towing Co., 159 F.2d 169 (1947).

[208] Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

[209] Ex parte Milligan, 71 U.S. 2 (1886).

[210] Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

[211] Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

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

[213] Southern Pac.Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498 (1911).

 

Australian cases cited:

[214] Macabenta v. Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202.

 

Canadian cases cited:

[215] R. v. Sharpe [2001] 1 S.C.R. 45.

[216] Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 927.

[217] Canadian Council of Churches v. Canada [1992] 1 S.C.R. 236.

[218] New Brunswick (Minister of Health and Community Services) v. G [1999] 3 S.C.R. 46.

[219] R. v. Keegstra [1990] 3 S.C.R 697.

[220] McKinney v. University of Guelph [1990] 3 S.C.R. 229.

[221] Libman v. Quebec (Attorney-General) [1997] 3 S.C.R. 569.

[222] RJR–MacDonald Inc. v. Canada (Attorney-General) [1995] 3 S.C.R 199.

[223] Edwards Books and Art Ltd. v. R. [1986] 2 S.C.R. 713.

 

English cases cited:

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

[225] R. v. Governor of Pentonville Prison [1973] 2 All ER 741.

[226] R (on the application of the Crown Prosecution Service) v. Registrar General of Births, Deaths and Marriages [2003] 1 All ER 540 (C.A.).

[227] Re Connor, an Application for Judicial Review [2004] NICA 45; [2005] NI 322 (C.A.).

[228] Secretary of State for the Home Department v. Rehman [2001] UKHL 47; [2002] 1 All ER 122.

[229] A v. Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68.

 

European Court of Human Rights cases cited:

[230] Berrehab v. Netherlands (1988) 11 E.H.R.R. 322.

[231] Moustaquim v. Belgium (1991) 13 E.H.H.R. 82.

[232] Ciliz v. Netherlands (2000) 33 E.H.R.R. 623.

[233] Carpenter v. Secretary of State, ECR I-6279 (2002).

[234] Campbell v. United Kingdom (1993) 15 E.H.R.R. 137.

[235] Abdulaziz Cabales and Balkandali v. U.K. (1985) 7 E.H.R.R. 471.

[236] Ahmut v. The Netherlands, no. 21702/93 [1996] ECHR 61.

[237] Gül v. Switzerland, no. 23218/94 [1996] ECHR 5.

 

German cases cited:

[238] BVerfGE 76, 1 (1987).

[239] BVerfGE 6, 389 (1957).

[240] BVerfGE 19, 342 (1965).

 

Irish cases cited:

[241] Fajujonu v. Minister of Justice [1990] 2 IR 151.

 

South African cases cited:

[242] Dawood v. Minister of Home Affairs, CCT 35/99; 2000 (3) SA 936 (CC).

[243] Makinana v. Minister of Home Affairs, (Cape of Good Hope) Case No 339/2000, 8 February 2001, unreported).

[244] Booysen v. Minister of Home Affairs, CCT 8/01; 2001 (4) SA 485 (CC).

 

Jewish law sources cited:

[245]  Genesis 1, 27; 2, 18; 2, 24.

[246]  Ecclesiastes 3, 1; 3, 8.

 

For the petitioners in HCJ 7052/03 — H. Jabarin, O. Cohen.

For the petitioners in HCJ 7102/03 — D. Holtz-Lechner.

For the petitioners in HCJ 7642/03 and HCJ 7643/03 — Tz. Sasson.

For the petitioners in HCJ 8099/03 — D. Yakir, S. Avraham-Weiss.

For the petitioners in HCJ 8263/03 — M. Halila.

For the petitioners in HCJ 10650/03 — A. Lustigman

For the State — Y. Gnessin, D. Marks.

For Jewish Majority in Israel — Z. Ferber

 

 

JUDGMENT

 

 

President A. Barak

The Citizenship and Entry into Israel Law (Temporary Provision), 5753-2003, provides that the Minister of the Interior shall not grant citizenship to a resident of Judaea, Samaria or the Gaza Strip (the ‘area’ or the ‘territories’), nor shall he give him a permit to live in Israel. The law also provides that the area commander shall not give such a resident a permit to stay in Israel. This provision does not apply to Israelis who live in the territories. It has several qualifications. It prevents, inter alia, the possibility of family reunification between an Israeli Arab and his or her Arab spouse who lives in the territories (where the husband from the territories is under the age of 35 or the wife from the territories is under the age of 25). This provision also imposes restrictions on the contact between a parent who is an Israeli resident and his child who is registered in the population register in the territories. The purpose underlying these provisions is security. It is intended to prevent the realization of the danger, which has occurred in the past, that a man from the territories, who was given the possibility of living in Israel with his Israeli wife, may assist persons involved in hostile terror activity. The law is not based on any ‘demographic’ purpose of restricting the increase of the Arab population in Israel. Against this background, the question arises whether the provisions of the Citizenship and Entry into Israel Law unlawfully violate the right of the Israeli spouses and children. The question is not what is the right of the foreign spouses in the territories. The question is whether the provisions of the law, in so far as they apply to the reunification of families between an Israeli Arab spouse and his or her Arab spouse living in the territories, and to the contact between parents who are Israeli residents and their children registered in the territories, are constitutional. Do they violate the human dignity of the Israeli spouse or parents? Is the violation lawful? These are the questions before us.

A. The security and normative background

(1) The security background

1.    In September 2000, the second intifada broke out. An intense barrage of terror descended upon the State of Israel. Most of the terror attacks were directed against civilians. They harmed men and women, the elderly and children. Complete families lost their loved ones. The attacks were intended to harm human life. They were intended to sow fear and panic. They sought to disrupt the way of life of Israeli citizens. The terror attacks are carried out inside Israel and in the territories. They take place everywhere. They hurt people on public transport, at shopping centres and markets, at cafés and inside homes and towns. The main target of the attacks is town centres in Israel. The attacks are also directed at Israeli towns in the territories and at traffic arteries. The terror organizations make use of various methods, including suicide attacks (‘live human bombs’), car bombs, placing explosive charges, throwing Molotov cocktails and grenades and shooting firearms, mortars and rockets. Several attempts to attack strategic targets failed. From the beginning of the acts of terror until January 2006, more than 1,500 attacks were made within the State of Israel. More than one thousand Israelis lost their lives within the State of Israel. Approximately six thousand and five hundred Israelis were injured. Many of the injured were severely disabled. On the Palestinian side also the armed conflict has caused many dead and injured. The bereavement and suffering overwhelm us (for a description of this situation, see, inter alia, HCJ 7015/02 Ajuri v. IDF Commander in West Bank [1], at p. 358 {87}; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2]).

2.    The State of Israel took a series of steps to protect the lives of its residents. Inter alia, military operations were carried out against the terror organizations, including the ‘Protective Wall’ operation (March 2002) and the ‘Determined Path’ operation (June 2002) (see HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [3]; HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [4]). It was decided to build a separation fence that would make it harder for terrorists to carry out attacks against Israelis, and would facilitate the struggle of the security forces against the terrorists (see Beit Sourik Village Council v. Government of Israel [2]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [5]).

3.    Among these steps, restrictions were imposed on the entry of residents of the territories into the State of Israel, because, according to the assessment of the security establishment, the entry into Israel of residents of the territories, and their unrestricted movement within it, significantly endangers the safety and security of the citizens and residents of the State of Israel. Against this serious security reality, and in view of these security arrangements, the Citizenship and Entry into Israel Law (Temporary Provisions), 5763-2003, (hereafter — ‘the Citizenship and Entry into Israel Law’ or ‘the law’) was also enacted. Subject to qualifications, the law prevents residents of the territories from entering the State of Israel. Within this framework, restrictions were also imposed, inter alia, on the reunification of families where one spouse is an Arab with Israeli citizenship or a permanent resident in Israel (mainly in Jerusalem) and the other is a resident of the territories. What underlies this arrangement is the concern that allowing residents of the territories to take up residence in Israel by means of marriage and reunification of families would be abused for the purposes of the armed conflict. This concern was based, inter alia, on the actual involvement of residents of the territories, who received a status in Israel by virtue of their marriage to Israelis, in acts of terror that were perpetrated within the State of Israel. The respondents claim that twenty-six of the residents of the territories who received a status in Israel as a result of marriage were involved in terror activity. Some of these were involved in carrying out the attacks themselves. Some assisted in bringing terrorists into Israel. Some assisted in gathering intelligence about targets for attacks. This concern was also based on the future risk arising from the contacts which the residents of the territories who become residents of Israel maintain with their relations and other residents of the territories, including persons involved in terror activity. So the background that led to the enactment of the Citizenship and Entry into Israel Law is the serious security reality that has prevailed in Israel in recent years, and the security threat to the citizens and residents of the State of Israel from the acts of terror organizations. An element of this threat is the involvement of Palestinians, who are residents of the territories and acquired a status in Israel as a result of their marriage and family reunification, in acts of terror that were committed inside the State of Israel, and the future threat deriving from these persons, according to the State. The Citizenship and Entry into Israel Law is intended to contend with these threats.

(2) The normative background

4.    At first, restrictions were imposed on the reunification of families by virtue of a government decision. In 2002 the government determined (decision no. 1813) a new procedure for dealing with the ‘policy of family reunifications concerning residents of the Palestinian Authority and foreigners of Palestinian origin.’ The decision (of 12 May 2002) said:

‘B. Policy concerning family reunifications

In view of the security position, and because of the ramifications of immigration processes and the residency of foreigners of Palestinian origin in Israel, including by means of family reunifications, the Ministry of the Interior, together with the relevant government ministries, shall formulate a new policy for dealing with applications for family reunifications. Until this policy is formulated and finds expression in new procedures and legislation, as necessary, the following rules shall apply:

1.            Dealing with new applications, including applications in which no decision has yet been made

a.            A resident of the Palestinian Authority — no new applications shall be accepted from residents of the Palestinian Authority for a residency status or any other status; an application that has been submitted shall not be approved, and the foreign spouse shall be required to live outside Israel until any other decision is made.

b.            Others — the application shall be considered with reference to the origin of the person concerned.

2.            Applications that are in the staged process

During the interim, a permit that was given shall be extended, subject to the absence of any other impediment. There shall be no upgrading to a higher status.’

According to this procedure, the regular treatment of applications for family reunification was stopped, in so far as residents of the Palestinian Authority were concerned. Several petitions were filed in the High Court of Justice against this procedure (see, for example, HCJ 4022/02, HCJ 4608/02, HCJ 7316/02, HCJ 7320/02). No decision was made with regard to these petitions, since while they were pending, the Citizenship and Entry into Israel Law was enacted.

5.    On 6 August 2003, the Citizenship and Entry into Israel Law was published. In essence, it enshrined government policy. The law is valid for one year. It provides that the government may, with the approval of the Knesset, extend its validity in an order, for a period that shall not exceed one year each time (s. 5). When the year ended, the law was extended for six months (until 5 February 2005: see Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5764-2004, and the decision of the Knesset on 21 July 2004). At the end of this period, the validity of the law was extended for four additional months (until 31 May 2005: Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5765-2005, and the decision of the Knesset on 31 January 2005). At the end of this period, the law was extended for three additional months (until 31 August 2005: Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order (no. 2), 5765-2005, and the decision of the Knesset on 30 May 2005). At the same time, the government prepared drafts for amendments to the law which extended the qualifications to the law’s application (see the draft law in HatZaot Hok (Draft Laws) 5765 (2004-5) no. 173, at p. 560). The amended law was published on 1 August 2005. It stated that it was valid until 31 March 2006. By virtue of s. 38 of the Basic Law: the Knesset, the validity of the law was extended for an additional three months.

6.    The Citizenship and Entry into Israel Law contains five sections. It is set out below in its entirety:

‘Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003

Definitions

1.  In this law —

‘area’ — any of the following: Judaea, Samaria and the Gaza Strip;

 

‘Citizenship Law’ — the Citizenship Law, 5712-1952;

 

‘Entry into Israel Law’ — the Entry into Israel Law, 5712-1952;

 

‘area commander’ — for Judaea and Samaria — the IDF commander in Judaea and Samaria, and for the Gaza Strip — the IDF commander in the Gaza Strip or whoever is authorized by the Minister of the Interior, with the consent of the Minister of Defence;

 

‘resident of an area’ — whoever is registered in the population register of the area, and also whoever is living in the area even without being registered in the population register of the area, except for a resident of an Israeli town in an area.

Restriction on citizenship and residency in Israel

2.  As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.

Permit for spouses

3.  Notwithstanding the provisions of section 2, the Minister of the Interior may, at his discretion, approve an application of a resident of the area to receive a permit to stay in Israel from the area commander —

 

(1) with regard to a male resident of an area whose age exceeds 35 years — in order to prevent his separation from his spouse who lives lawfully in Israel;

 

(2) with regard to a female resident of an area whose age exceeds 25 years — in order to prevent her separation from her spouse who lives lawfully in Israel.

Permit for children

3A. Notwithstanding the provisions of section 2, the Minister of the Interior, at his discretion, may —

 

(1) give a minor under the age of 14 years, who is a resident of an area, a licence to live in Israel in order to prevent his separation from his custodial parent who lives lawfully in Israel;

 

(2) approve an application to obtain a permit to live in Israel from the area commander for a minor under the age of 14 years, who is a resident of the area, in order to prevent his separation from his custodial parent who lives lawfully in Israel, provided that such a permit shall not be extended if the minor does not live permanently in Israel.

Additional permits

3B. Notwithstanding the provisions of section 2, the area commander may give a permit to stay in Israel for the following purposes:

 

(1) medical treatment;

 

(2) work in Israel;

 

(3) a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.

Special
permit

3C. Notwithstanding the provisions of section 2, the Minister of the Interior may grant citizenship or give a licence to live in Israel to a resident of an area, and the area commander may give a resident of an area a permit to stay in Israel, if they are persuaded that the resident of the area identifies with the State of Israel and its goals and that he or a member of his family has made a real contribution to promoting security, the economy or another important interest of the State, or that the granting of citizenship, giving the licence to live in Israel or giving the permit to stay in Israel, as applicable, are a special interest of the State; in this paragraph, ‘family member’ — spouse, parent, child.

Security impediment

3D. A permit to stay in Israel shall not be given to a resident of an area under section 3, 3A(2), 3B(2) and (3) and 4(2), if the Minister of the Interior or the area commander, as applicable, determines, in accordance with an opinion from the competent security authorities, that the resident of the area or his family member are likely to constitute a security risk to the State of Israel; in this section, ‘family member’ — spouse, parent, child, brother, sister and their spouses.

Transition provisions

4.  Notwithstanding the provisions of this law —

 

(1)    the Minister of the Interior or the area commander, as applicable, may extend the validity of a licence to live in Israel or of a permit to stay in Israel, which were held by a resident of an area prior to the commencement of this law, while taking into account, inter alia, the existence of a security impediment as stated in section 3D;

 

(2) The area commander may give a permit for a temporary stay in Israel to a resident of an area who filed an application to become a citizen under the Citizenship Law or an application for a licence to live in Israel under the Entry into Israel Law, before the first of Sivan 5762 (12 May 2002) and with regard to which, on the date of commencement of this law, no decision had been made, provided that a resident as aforesaid shall not be given citizenship, under the provisions of this paragraph, nor shall he be given a licence for temporary residency or permanent residency, under the Entry into Israel Law.

Validity

5.  This law shall remain valid until the second of Nissan 5766 (31 March 2006), but the government may, with the approval of the Knesset, extend its validity in an order, for a period that shall not exceed one year each time.’

B.    The petition and the hearing thereof

(1) The petitioners and the respondents

7.    Some of the petitioners before us are married couples to whom the Citizenship and Entry into Israel Law applies. Thus the second petitioner in HCJ 7052/03 is an Arab citizen of Israel, a resident of Kefar Lakia in the Negev, who is a lawyer by profession. He became acquainted with the third petitioner, a Palestinian resident of Bethlehem, who is a social worker by profession and a university lecturer, in 2000, when they studied together at a university in Canada. After they completed their education, and when the relationship between them became stronger, they decided to marry. They became engaged on 20 February 2003, and on the same occasion they made a marriage agreement that was given validity by the Sharia Court in Jerusalem. Their application to give a status in Israel to the third petitioner (which was filed on 19 March 2003) was rejected (on the basis of government decision no. 1813). The marriage ceremony took place on 11 July 2003. For the purpose of the ceremony, the third petitioner was permitted to stay in Israel for one week only. Since then she has not been allowed to enter Israel. The fourth petitioner in HCJ 7052/03 is an Arab woman who is an Israeli citizen living in Shefaram and whose profession is teaching literature, which she does at the Sahnin Technological High School. After an acquaintance of one year, on 6 November 1999 she married the fifth petitioner, a Palestinian from Shechem, who is an electrician by profession and worked in Nazareth and whose stay in Israel was lawful. The spouses live in Shefaram and they have two daughters (the sixth and seventh petitioners). The fourth petitioner applied to the Ministry of the Interior in the area where she lives in order to obtain a residency licence for her husband. The fifth petitioner was given a temporary licence to stay in Israel. As a result of the government’s decision, the process in which the fifth petitioner was becoming a citizen was stopped, and since then he has been staying in Israel by virtue of temporary permits that are renewed from time to time, at the discretion of the Minister of the Interior. The first petitioner in HCJ 8263/03 is an Arab citizen of Israel who lives in Haifa. On 12 July 2002, he married the second petitioner, a Palestinian from the Hebron area, and they have a son. The petitioners’ application for the second petitioner to be given a status was rejected on the basis of the government’s decision, and now the Citizenship and Entry into Israel Law prevents the possibility of them entering into the staged process in order to obtain a status for the second petitioner. The petitioners claim that they cannot go to live in the territories, inter alia, in view of the danger that threatens the life of the second petitioner. The first petitioner in HCJ 7082/03 is an Arab citizen of Israel, who lives in Beit Tzafafa in Jerusalem. On 21 December 2002 he married the second petitioner, a Palestinian from nearby Beit Sahour. At the beginning of 2003, their application was filed to obtain a status for the second petitioner in Israel. The application was rejected in view of the government’s decision, and subsequently the Citizenship and Entry into Israel Law came into effect. The first petitioner in HCJ 10650/03 was born in Jerusalem and is a resident of the State of Israel. In 1988 she married a resident of Ramalla and went to live with him. In 2000 the petitioner returned to live in Jerusalem. The couple have seven children. The oldest of these is sixteen and the youngest is three. Four of the children were born while she was living in the territories, and they were registered in the population register there. After she returned to live in Jerusalem, she applied, in 2002, for her children to be given the status of residents. Her request was rejected in view of the government’s decision, and subsequently the Citizenship and Entry into Israel Law came into effect.

8.    We therefore have before us various kinds of petitioners who are injured by the law. The petitioners with a personal interest in the clarification of the petitions are married couples, where one of the couple is an Israeli Arab and the other is a Palestinian Arab who is a resident of the territories. Some of them have children. The cases of some of the couples were not dealt with in view of the government’s decision and the Citizenship and Entry into Israel Law that incorporated it into legislation. The cases of other petitioners are undergoing the staged process, but the law prevents the process from being completed and it prevents the Palestinian spouse from being given Israeli citizenship. In addition to the petitioners with a personal interest, we have many public petitioners, including Knesset members (MK Taleb El-Sana, MK Mohammed Barakeh, MK Azmi Bishara, MK Abdulmalik Dehamshe, MK Jamal Zahalka, MK Wasil Taha, MK Ahmad Tibi, MK Issam Makhoul, MK Zahava Gal-On and MK Roman Bronfman), Knesset factions (the Meretz faction), the Supreme Monitoring Committee for Arab Affairs in Israel and human rights organizations (Adalah, the Association for Civil Rights in Israel, the Centre for the Defence of the Individual). The respondents are the Minister of the Interior and the attorney-general.

(2) The claims of the petitioners

9.    The petitioners claim that the Citizenship and Entry into Israel Law is unconstitutional, since it unlawfully violates rights that are enshrined in the Basic Law: Human Dignity and Liberty, on the basis of ethnic and national groupings. The petitioners claim that the law violates the right of citizens of the State who wish to be united with their spouses or their children in order to have a family life in their country. They claim that this violation breaches the right of the Arab citizens of Israel to equality, and the discrimination in this violates human dignity. The Citizenship and Entry into Israel law prevents the spouse of an Israeli citizen from becoming a citizen, if the spouse lives in the territories and is not a resident of an Israeli town there. Since the vast majority of those persons who are married to residents of the territories (who do not live in an Israeli town) are Arab citizens, it follows that the law mainly injures the Arab citizens of Israel. Therefore, this is a case of a discriminatory denial of rights, on an ethnic basis or a national basis. Against this background, the petitioners claim that the Citizenship and Entry into Israel Law should not be regarded as applying merely to immigration policy, but one should also focus on the injury that it causes to Israeli citizens and residents. They claim that the law besmirches a whole sector of the public with the suspicion of disloyalty to the State and classifies it as being a security risk. The petitioners claim that all of these involve a serious and mortal blow to the right of equality and the right to human dignity. The petitioners claim that the law violates additional basic rights enshrined in the Basic Law: Human Dignity and Liberty. Thus they claim that it violates the private life of Arab citizens who are married to residents of the territories that do not live in Israeli towns. The right to personal freedom is also violated. Furthermore, the natural right of a parent to have contact with his child and the right to build a family are violated. In all these respects, the petitioners claim that the Citizenship and Entry into Israel Law violates the provisions of international law that recognize the rights of marriage, family life and the reunification of families. In addition, the petitioners claim that the law applies retroactively to couples whose cases were pending, and so it also violates the right of due process.

10. The petitioners further claim that the violation of the basic rights that they indicate does not satisfy the limitations clause in the Basic Law, and therefore the Citizenship and Entry into Israel Law should be declared void. In so far as the purpose of the law is concerned, their claim is that it is an improper one. They claim that the sections of the law have no internal logic, and this indicates that the purpose of the law is not a security purpose at all. From the provisions of the law it appears that the legislature is prepared to allow the entry of Palestinian workers into Israel, but it is not prepared to permit the entry of parents and spouses so that they may have a family life. Therefore the purpose that appears from the Citizenship and Entry into Israel Law is to prevent the persons who are requesting visas for family purposes from entering or staying in Israel. The petitioners point to the desire of the Ministry of the Interior, which was already apparent in 2002, to reduce the phenomenon of the reunification of families with Palestinian spouses for demographic reasons. They also deduce the demographic purpose from the chart that was presented to the government before it made its decision (on 12 May 2002), which concerned this factor, and from the remarks of those participating in the Knesset debates before the Citizenship and Entry into Israel Law was enacted. In view of this, the petitioners claim that the purpose of the law is improper and does not befit the values of the State of Israel. The petitioners further claim that the severe violation caused by the law to human rights is disproportionate. According to them, it is possible to examine the security concern inherent in the Palestinian spouses on an individual basis, and there is no basis for denying the possibility of family reunification for a whole sector of the public because of the wrongdoing of individuals. This is especially the case when, from the respondents’ figures, it can be seen that the involvement of those who became citizens in terror activities, notwithstanding the severity with which this should be regarded, is very marginal. According to the petitioners, the purpose of the staged process followed by the Ministry of the Interior was, inter alia, to allay security concerns. Therefore, there is no basis for cancelling it and replacing it with a law that creates an absolute prohibition against the possibility of family reunification.

11. In addition to the substantive claims against the contents of the law, the petitioners further claim that defects occurred, according to them, in the legislative process of the Citizenship and Entry into Israel Law. Thus, when the draft law was considered, it was alleged that there was a security need for enacting it, in view of the increasing involvement in terror attacks on the part of Palestinians who received a status in Israel by virtue of family reunifications. But no exact data was provided about the number of the persons who received a status in Israel, how many of these were children and how many adults, and what was the extent of their involvement in terror. Moreover, the effects of the Citizenship and Entry into Israel Law on the rights of children were not considered, although this was required by the provisions of the Providing Information on the Effect of Legislation on Children’s Rights Law, 5762-2002. The petitioners also claim that the Internal Affairs Committee was not given an opportunity to hold a debate with regard to objections made regarding the constitutionality of the law. According to them, these defects go to the heart of the legislative process, to an extent that justifies the voidance of the law.

(3) The claims of the respondents

12. The respondents reject the claims of the petitioners. According to them, the Citizenship and Entry into Israel Law is constitutional. They focus on the security background that led to its enactment, and its security purpose. The Israeli-Palestinian conflict underwent a change in September 2000, and the terror activity component in it increased significantly. Many Israelis lost their lives as a result of this activity. Within the context of the armed conflict between the Palestinians and Israel, the Palestinian side avails itself, in some cases, of Arab citizens of the State of Israel, and especially persons who were residents of the territories and received a status in Israel as a result of the family reunification process. To the best of the knowledge of the security authorities, since 2001, twenty-six residents of the territories who received a status in Israel as a result of family reunifications were involved in real aid and assistance to terror attacks against Israelis. In these attacks, fifty Israelis were killed and more than a hundred were injured. Therefore, the assessment of the security forces is ‘that there is a security need to prevent, at this time, the entry of residents of the territories, as such, into Israel, since the entry of residents of the territories into Israel and their free movement within the State by virtue of the receipt of Israeli documentation is likely to endanger, in a very real way, the safety and security of citizens and residents of the State’ (para. 3 of the respondents’ response of 3 November 2003). The respondents’ position is that giving a permit to stay in Israel for the purpose of permanent residence in Israel to a resident of a state or a political entity that is waging an armed conflict with Israel involves a security risk, since the loyalty and commitment of that person is to the state or the political entity that is involved in a conflict with Israel. The respondents’ position is that ‘within the context of the loyalty and commitment of that person, and his close ties to the territory where and whence the terror against the State of Israel originates, it is possible to exert pressure on someone whose family continues to live in such a place so that he will help the terror organizations, if he does not want any harm to come to his family’ (para. 13 of the state’s response dated 6 November 2005).

13. The respondents emphasize that the purpose of the law is to reduce the danger of harm to the lives of Israeli citizens and residents. It is the duty of the State to protect its citizens. It is also its right to act in self-defence. Preventing persons from the territories from entering or staying in Israel is based upon a security concern, which is not theoretical, of an almost certain risk to public security and safety. The respondents reject the claim that the Citizenship and Entry into Israel Law suffers from a lack of internal logic; admittedly, the law retains the possibility of allowing Palestinian workers from the territories to enter Israel, but the entry of these is restricted to periods of calm, and it is easy to supervise their stay in Israel, unlike Palestinian spouses who stay in Israel on a permanent basis. A large-scale entry of residents of the territories into Israel is dangerous. Their free movement in Israel is likely to endanger significantly the safety and security of the citizens and residents of Israel.

14. The respondents claim that the law does not violate the human rights enshrined in the Basic Law: Human Dignity and Liberty. First, in so far as we are concerned with the rights of foreigners who wish to immigrate into Israel, there is no constitutional right that a foreigner may immigrate into Israel for any reason, including marriage. Moreover, our law, like the law practised around the world, recognizes a wide discretion given to the state in determining its immigration policy. As a rule, the state is not required to give reasons to a foreigner as to why it refuses to allow his entry into it. Second, the respondents are of the opinion that the law also does not violate the rights of the Israeli citizens enshrined in the Basic Law: Human Dignity and Liberty. Their fundamental position is that the Basic Law should be interpreted in accordance with the social consensus that prevailed at the time it was enacted. According to this consensus, the right of human dignity should be given its basic meaning that includes protection against blatant violations of human dignity — physical and emotional violations, humiliation, degradation, etc. — and there is no basis for including in it the whole scope of the right of equality or the right to family life. According to them, both constitutional history and the objective and subjective intention of the constitutive authority support this conclusion. Third, the respondents’ claim is that there is no need at all to consider the question of the circumstances in which a violation of equality will amount to a violation of the constitutional right to dignity, since the law does not violate the right to equality. The distinction that the law makes is an objective and justified distinction in the circumstances of the case, namely that a person belongs to a political entity that is in an armed conflict with the State of Israel. The respondents’ view is that improper discrimination exists only where citizens are treated differently because of an irrelevant difference (such as sex, religion, race and nationality). But the law does not make any distinctions on the basis of the characteristics of the Israeli spouses, only a distinction based on certain characteristics of the foreign spouse. Therefore, there is no basis for the claim of discrimination and the claim of a violation to the constitutional right to equality. Fourth, the respondents further claim that the law does not violate any other basic rights enshrined in the Basic Law: Human Dignity and Liberty. Thus, as they understand it, the right of the petitioners to freedom is not violated, since there is no violation of the right to freedom by means of imprisonment, arrest, extradition or the like. The right of privacy is also not violated, since the law denies benefits in the field of immigration only, and it does not affect the individual’s freedom to choose a spouse. In so far as the right to family life is concerned, the respondents claim that the temporary provision ‘does not prevent family life, nor does it limit the autonomy of choosing a spouse, nor does it deny the right to family life in principle, but it does not allow the realization of the right specifically in the State of Israel’ (para. 35 of the response dated 3 November 2005). If so, the law does not prevent the choice of spouse, but merely does not allow the realization of the right specifically in Israel. This realization is not protected by the Basic Law: Human Dignity and Liberty. With regard to the international conventions to which the petitioners refer, the respondents claim that these are not a part of internal Israeli law, and that even on the merits their provisions are subject to restrictions of national security. According to them, international law protects the right of a person who is staying in a country to leave it and to move freely within it, but the right of entry into the state is reserved for the citizens of the state only. Contractual international law, which concerns the protection of the family unit, does not provide an obligation on the part of the state to allow the entry of the foreign spouse into its territory for the purpose of living there. Moreover, the Basic Law: Human Dignity and Liberty allows every person to leave Israel (s. 6(a)), but allows only a citizen to enter Israel (s. 6(b)). Against this background, the respondents claim that there is, in this case, no violation of the rights enshrined in the Basic Law.

15. Finally, the respondents claim that even if the law violates rights under the Basic Law, these violations still satisfy the requirements of the limitations clause. First, the respondents emphasize that we are dealing with temporary provisions that are of a transient nature. Second, they claim that the right to life of the persons living in the State of Israel and the interest in protecting their security is a proper purpose that befits the values of the State of Israel. The fact that the purpose of the law is to protect the right to life, which is a basic right, should affect the examination of the law in accordance with the tests of the limitations clause. Taking this into account, their third claim is that the law also satisfies the requirement of proportionality. The respondents point to the difficulty inherent in their being able to examine the cases of persons requesting a status in Israel on an individual basis. In the case of many applicants, and especially those that live in the areas of the Palestinian Authority (areas A and B), there is no security information. The fact that there is no negative security information concerning an applicant does not mean that he is not involved in activity harmful to security. In addition, even someone who has already received a permit to stay in Israel may be recruited by terror activists. The respondents are of the opinion that the provisions of the law are not retroactive. The law does not apply to requests that were filed or approved before it came into effect. In addition, the respondents refer to the transition provisions that allow the extension of the validity of a licence to live or stay in Israel. Finally, the respondents claim that the legislative process was proper and that the provisions of the law were considered carefully, and even underwent important changes in the course of the deliberations that were held with regard to it.

(4) The hearing of the petitions

16. The petitions against the Citizenship and Entry into Israel Law were filed shortly after it was enacted. After we heard the arguments of the parties, an order nisi was made (on 9 November 2003). Interim orders were also made to prevent the deportation of the Palestinian petitioners staying in Israel. Other applications for interim orders, and an application for an interim order that would prevent the law from coming into effect, were denied. It was decided that the petitions would be heard before an extended panel of the court. We also decided to join as a respondent to the petitions the ‘Victims of Arab Terror’ association, which emphasized the right of Israeli citizens to a quiet and safe life. We also decided to join as a respondent the ‘Jewish Majority in Israel’ association, which emphasized the demographic consideration according to which the Jewish majority in Israel should be preserved. Before we had time to make a decision on the petitions, a year passed from the date on which the law was published, and the Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5764-2004, was published; this extended the validity of the law by an additional six months. Together with the decision to extend the validity of the law by half a year, the government adopted a decision to prepare an amendment to the law that would make changes to it, and in particular expand the qualifications to the application of the law. In view of this, we were of the opinion (in a decision on 14 December 2004) that our judgment should be given on the basis of the new normative reality that was about to be created. Before the process of amending the law was completed, the six months expired, and the Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5765-2005, was published; this extended the validity of the law for an additional four months, for the purpose of completing the legislative process. In view of the restricted period of the extension of the law’s validity, we decided (on 1 March 2005) that we ought to allow the legislator to complete the complex legislative process. The legislative process was completed. The amended law was published. After the amendment, we again (on 14 February 2006) heard the arguments of the parties and studied the supplementary arguments. The time has come to decide the petitions on their merits.

C.    The questions that require a decision and the methods of deciding them

(1) The questions that require a decision

17. The focus of the petitions before us is the Israeli spouse. The main question before us is whether the constitutional rights of the Israeli spouse have been violated unlawfully. The question is whether rights that were given to him in the Basic Law: Human Dignity and Liberty have been violated unlawfully. In view of the centrality of the right of the Israeli spouse and in view of my conclusion that the right of the Israeli spouse has been violated, I see no reason to consider the rights of the non-Israeli (foreign) spouse), whether under international law concerning human rights (such as the International Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights, 1966, and the International Convention on the Elimination of All Forms of Racial Discrimination, 1965) or under humanitarian international law that applies to him because he lives in Judaea and Samaria, which are subject to a belligerent occupation (in this regard, see Marab v. IDF Commander in Judaea and Samaria [3] and A. Rubinstein & L. Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006)). Indeed, even if the rights of the foreign spouse have been violated under international human rights law and humanitarian human rights law — and even if the rights of the Israeli spouse to the extent that they are enshrined only in those laws were violated — this violation was made by virtue of the Citizenship and Entry into Israel Law. Express local legislation is capable, from the internal viewpoint of Israeli law, of violating rights given in international law. No matter how much the latter constitutes customary international law, it is unable to overcome Israeli legislation that expressly violates it. This is not the case with the Israeli spouse under the Basic Law. In so far as he has rights under the Basic Law: Human Dignity and Liberty, an ordinary law (such as the Citizenship and Entry into Israel Law) cannot violate it lawfully, unless it satisfies the requirements of the limitations clause. This is the clear expression of Israel’s constitutional democracy. We adopted this approach with regard to the rights of the Israelis who were compelled to leave the Gaza Strip (see HCJ 1661/05 Gaza Coast Local Council v. Knesset [6]). According to the same normative system we should examine the constitutional rights of the Israeli spouses, in so far as the Citizenship and Entry into Israel Law violates them. Naturally, we cannot ignore the foreign spouse. We should recognize his rights and the effect of those on his life and the life of his Israeli spouse. Nonetheless, from the viewpoint of legal analysis, we will focus on the Israeli spouse, because he can call upon the Basic Law: Human Dignity and Liberty to support his case.

(2) The constitutional scrutiny

18. According to the petitioners, the two main rights that this law violates are the right to family life and the right to equality. Their position is that these rights are enshrined in the Basic Law: Human Dignity and Liberty, and they are violated in defiance of the conditions set out in the limitations clause. The scrutiny of a claim against the constitutionality of the Citizenship and Entry into Israel Law is done in three stages (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [7]; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [8]; HCJ 6055/95 Tzemah v. Minister of Defence [9]; HCJ 1030/99 Oron v. Knesset Speaker [10]; HCJ 4769/95 Menahem v. Minister of Transport [11]; Gaza Coast Local Council v. Knesset [6]). The first stage examines whether the law — in our case the Citizenship and Entry into Israel Law — violates a human right enshrined in the Basic Law. If the answer is no, the constitutional scrutiny ends, since an ordinary law, which contains an express provision, may violate a human right that is enshrined in an earlier ordinary law or in Israeli common law (see, for example, HCJ 4128/02 Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12]). If the answer is yes, the legal analysis passes on to the next stage. In the second stage, we examine the question whether the violation of the right satisfies the requirements of the limitations clause. Indeed, not every violation of a human right is an unlawful violation. Sometimes a law violates a constitutional human right, but the constitutionality of the law is upheld, since the violation satisfies the requirements of the limitations clause (see, for example, HCJ 2334/02 Stanger v. Knesset Speaker [13]; HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14]). If the violation of the constitutional arrangement is lawful, the constitutional examination ends. If the violation is unlawful, the analysis continues on to the next stage. This third stage examines the consequences of the unconstitutionality. This is the relief or remedy stage.

(3) Is there a basis for constitutional scrutiny in times of war?

19. It may be argued that the cases before us deal with the prevention of terror in a time of war. They are not usual cases of preventing family reunification. We are dealing with an exceptional case of family reunification, where the spouse or child of the person claiming his constitutional right to family reunification is situated in an area which is in a state of war with the State of Israel. In such circumstances — so the argument would continue — the ordinary laws concerning the three-stage constitutional scrutiny should not be applied. This situation falls outside the normal framework. It is a matter of existence. À la guerre comme à la guerre; the security need prevails over the right of the individual.

20. I cannot accept this argument. The Basic Laws do not recognize two sets of laws, one that applies in times of peace and the other that applies in times of war. They do not contain provisions according to which constitutional human rights recede in times of war. Thus, for example, section 50 of the Basic Law: the Government, which authorizes the government to enact emergency regulations, states expressly that ‘Emergency regulations are incapable of… permitting a violation of human dignity’ (subsection (d)). The Basic Law: Human Dignity and Liberty further provides that ‘It is permitted to enact emergency regulations… which will contain a denial or restriction of rights under this Basic Law, provided that the denial or restriction are for a proper purpose and for a period and to a degree that are not excessive’ (s. 12). Indeed, Israeli constitutional law has a consistent approach to human rights in periods of relative calm and in periods of increased fighting. We do not recognize a clear distinction between the two. We do not have balancing laws that are unique to times of war. Naturally, human rights are not absolute. They can be restricted in times of calm and in times of war. I do not have a right to shout ‘fire’ in a theatre full of spectators (see the analogy of Justice Holmes in Schenck v. United States [184], at p. 52, which was cited in CrimApp 5934/05 Malka v. State of Israel [15], at p. 843). War is like a barrel full of explosives next to a source of fire. In times of war the likelihood that damage will occur to the public interest increases and the strength of the harm to the public interest increases, and so the restriction of the right becomes possible within the framework of existing criteria (see HCJ 316/03 Bakri v. Israel Film Council [16], at p. 283 {523-524}). Indeed, we do not have two sets of laws or balances, one for times of calm and the other for times of terror. This idea was well expressed by Lord Atkin more than sixty-five years ago, during the Second World War, in a minority opinion where he said:

‘In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which… we are now fighting, that the judges… stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law’ (Liversidge v. Anderson [224], at p. 361).

21. Moreover, there is no possibility of making a clear distinction between the status of human rights in times of war and their status in times of peace. The dividing line between terror and calm is a fine one. This is the case everywhere. It is certainly the case in Israel. There is no possibility of maintaining it over time. We must treat human rights seriously both in times of war and in times of calm. We must free ourselves from the naïve belief that when terror ends we will be able to put the clock back. Indeed, if we fail in our task in times of war and terror, we will not be able to carry out our task properly in times of peace and calm. From this viewpoint, a mistake by the judiciary in a time of emergency is more serious than a mistake of the legislature and the executive in a time of emergency. The reason for this is that the mistake of the judiciary will accompany democracy even when the threat of terror has passed, and it will remain in the case law of the court as a magnet for the development of new and problematic rulings. This is not the case with mistakes by the other powers. These will be cancelled and usually no-one will remember them. This was well expressed by Justice Jackson in Korematsu v. United States [185], where he said:

‘A judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty… A military order, however unconstitutional, is not apt to last longer than the military emergency… But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need… A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image’ (Korematsu v. United States [185], at p. 245).

22. Thus we see that there is only one track within which framework the petitions before us should be examined. This track is — with regard to any claim against the constitutionality of a statute — the track of the Basic Laws. Within the framework of this track, we should follow the well-trodden path of examining the constitutionality of the law. There is no parallel track; there is no alternative route. There is one path that applies at all times. It applies in times of calm. It applies in times of war.

D. Stages of the constitutional scrutiny: 1. Has a constitutional right been violated?

(1) The problems presented

23. It was argued before us that the Citizenship and Entry into Israel Law violates the right of the Israeli spouse to human dignity. This violation, so it is claimed, is two-fold: first, the right of the Israeli spouse to human dignity is violated, since his right to family life is violated; second, the right of the Israeli spouse to human dignity is violated, since his right to equality is violated. This argument presents us with three fundamental questions: first, are the right of the Israeli spouse to family life and his right to equality recognized in Israel? This question concerns the very existence of the right to family life and the right to equality. Second, are these human rights to family life and equality included within the scope of the constitutional right to human dignity, which is enshrined in sections 2 and 4 of the Basic Law: Human Dignity and Liberty? This question concerns the existence of the right to family life and equality as a constitutional right, within the scope of the Basic Law: Human Dignity and Liberty. Third, does the Citizenship and Entry into Israel Law violate the constitutional right to human dignity (with respect to family life and equality) of the Israeli spouse? We will begin with the first question, by considering separately the right to family life of the Israeli spouse and his right to equality.

(2) Does Israeli law recognize the right of the Israeli spouse to family life and equality?

(a) The right of the Israeli spouse to family life

24. Is the right of a person to family life recognized in Israel? Within the context of the petitions before us, we do not need to decide all the aspects of this question. We can focus mainly on two specific aspects of family life: first, do we recognize the right of the Israeli spouse to live in Israel together with the foreign spouse? Second, do we recognize the right of the Israeli spouse to live together with his children in Israel and the right of Israeli children to live together with their parents in Israel? Other aspects of the fundamental question, including the definition of family for this purpose, can be left undecided at this time (see Y. Marin, ‘The Right to Family Life and (Civil) Marriage — International and Local Law,’ Economic, Social and Cultural Rights in Israel (Y. Rabin and Y. Shani eds. (2004) 663).

25. The right to family life, in the broad sense, is recognized in Israeli law. It is derived from many statutes, which provide arrangements whose purpose is to preserve, encourage and nurture the family unit. Spouses are given social rights, tax, accommodation and housing benefits. They enjoy rights of medical and pension insurance. They have visitation rights in hospitals and prisons. They have privileges and defences in the laws of evidence. The criminal law protects the family; spouses have rights of inheritance, maintenance and mutual support during the marriage, and rights to a division of property when the marriage ends. Although the various statutes deal with specific aspects, it is possible to deduce from them that the family unit is recognized in Israel law and protected by it. Indeed, the family unit is ‘the basic unit… “of Israeli society” ’ (per Justice S.Z. Cheshin in CA 238/53 Cohen v. Attorney-General [17], at p. 53}). ‘Human society cannot exist unless we protect with our lives its basic unit, which is the family unit’ (per Justice M. Silberg in CA 337/62 Riezenfeld v. Jacobson [18], at p. 1021 {107}). It is ‘an institution that is recognized by society as one of the basic elements of social life’ (per President Y. Olshan, ibid. [18], at p. 1030 {118}). ‘It is our main and basic duty to preserve, nurture and protect the most basic and ancient family unit in the history of mankind, which was, is and will be the element that preserves and ensures the existence of the human race, namely the natural family’ (per Justice M. Elon in CA 488/77 A v. Attorney-General [19], at p. 434). ‘Protecting the institution of the family is a part of public policy in Israel. In the context of the family unit, protecting the institution of marriage is a central social value… there is a supreme public interest in protecting this status and in regulating… the scope of rights and duties that formulate it’ (HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [20], at p. 783). Indeed, the family relationship, and the protection of the family and its basic elements (the spouses and their children) lie at the basis of Israeli law. The family has an essential and central purpose in the life of the individual and the life of society. Family relationships, which the law protects and which it seeks to develop, are some of the strongest and most significant in a person’s life.

26. Protection of the family unit finds special expression when the family unit includes a minor. This protection is required both by the right of the parents to raise their children, and by the rights of the child himself. Indeed, ‘the right of the parents to raise their children is a natural, basic right, whose importance can hardly be exaggerated’ (P. Shifman, Family Law in Israel, vol. 2, 1989, at p. 219). ‘The connection between a child and his parents who gave birth to him is one of the fundamentals on which human society is based’ (LFA 377/05 A v. Biological Parents [21], at para. 46). As my colleague, Justice A. Procaccia, said:

‘The depth and strength of the parental bond, which contains within it the natural right of a parent and his child to a bond of life between them, has made family autonomy a value of the highest legal status, and a violation of this is allowed only in very special and exceptional cases. Every separation of a child from a parent is a violation of a natural right’ (LCA 3009/02 A v. B [22], at pp. 894-895).

And in the words of my colleague Justice M. Cheshin:

‘It is the law of nature that a mother and father naturally have custody of their child, raise him, love him and care for his needs until he grows up and becomes a man… this bond is stronger than any other, irrespective of society, religion and country… the law of the state did not create the rights of parents vis-à-vis their children and vis-à-vis the whole world. The law of the state adopts what already existed, and seeks to protect the innate instinct within us, and it turns an “interest” of parents into a “right” under the law, namely the rights of parents to have custody of their children’ (CFH 7015/94 Attorney-General v. A [23], at p. 102).

27. The right to family life is not exhausted by the right to marry and to have children. The right to family life means the right to joint family life. This is the right of the Israeli spouse to lead his family life in Israel. This right is violated if the Israeli spouse is not allowed to lead his family life in Israel with the foreign spouse. He is thereby forced to choose whether to emigrate from Israel or to sever his relationship with his spouse. This was discussed by Justice M. Cheshin in HCJ 3648/97 Stamka v. Minister of Interior [24]. In that case, the court considered the policy of the Minister of the Interior with regard to granting citizenship to a foreign spouse in Israel. Justice M. Cheshin recognized the ‘basic right of an individual — every individual — to marry and establish a family’ (at p. 782 [24]). In his opinion, Justice M. Cheshin says:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family reunifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family reunifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice’ (Stamka v. Minister of Interior [24], at p. 787).

Against this background, it was held that this protection extends not only to married spouses, but also to recognized couples who are not married. My colleague Justice D. Beinisch wrote that the state recognizes:

‘… that the family unit, which is not based on a formal bond of marriage, is also worthy of protection, and the partners who comprise it should be allowed to live together and to continue to live in Israel, provided that it is a real, genuine and established relationship. This policy gives expression to the commitment of the state to the right to family life, which includes the right of the individual to choose his partner and to establish a family with him. This right is recognized in our law and is also protected in international law’ (AAA 4614/05 State of Israel v. Oren [25], at para. 11 of the opinion of Justice D. Beinisch).

Indeed, this right of the Israeli spouse to family life in Israel together with the foreign spouse finds expression in s. 7 of the Citizenship Law, 5712-1952 (hereafter — ‘the Citizenship Law’), which makes it easier for the foreign spouse to become a citizen. This right also finds expression in the discretion of the Minister of the Interior with regard to immigration to Israel. Admittedly, the right to family life in general, and the right of the Israeli spouse to realize it in Israel in particular, is not an absolute right. It can be restricted. Nonetheless, these restrictions are not capable of restricting the actual existence of the right. The right exists in Israel. It is recognized by Israeli law. It constitutes a general purpose of all legislation (see Efrat v. Director of Population Registry, Ministry of Interior [20], and thus assists in the interpretation of legislation (see Barak, ‘General Principles of Law in Interpretation of the Law,’ Weisman Book 1 (2002)). It constitutes a part of Israeli common law, from which it is possible to derive rights and duties.

28. The right to family life is also the right of the Israeli parent that his minor children will grow up with him in Israel and the right of an Israeli child to grow up in Israel together with his parents. Israeli law recognizes the importance of making the civil status of the parent equal to that of the child. Thus, s. 4 of the Citizenship Law provides that a child of an Israeli citizen shall also be an Israeli citizen, whether he is born in Israel (s. 4A(1)) or he is born outside it (s. 4A(2)). Similarly, r. 12 of the Entry into Israel Regulations, 5734-1974, provides that ‘A child who is born in Israel, to whom s. 4 of the Law of Return, 5710-1950, does not apply, shall have the same status in Israel as his parents.’ Even though this regulation does not apply, according to its wording, to children of residents who were not born in Israel, it has been held that the purpose for which r. 12 was intended applies also to the children of permanent residents who were born outside Israel. Thus, for example, it was held that:

‘As a rule, our legal system recognizes and respects the value of the integrity of the family unit and the interest of safeguarding the welfare of the child, and therefore we should prevent the creation of a difference between the status of a minor child and the status of his parent who has custody or is entitled to have custody of him’ (per Justice Beinisch in HCJ 979/99 Carlo (a minor) v. Minister of the Interior (not yet reported), at para. 2 of the opinion of Justice D. Beinisch).

Respect for the family unit has, therefore, two aspects. The first aspect is the right of the Israeli parent to raise his child in his country. This is the right of the Israeli parent to realize his parenthood in its entirety, the right to enjoy his relationship with his child and not be severed from him. This is the right to raise his child in his home, in his country. This is the right of the parent not to be compelled to emigrate from Israel, as a condition for realizing his parenthood. It is based on the autonomy and privacy of the family unit. This right is violated if we do not allow the minor child of the Israeli parent to live with him in Israel. The second aspect is the right of the child to family life. It is based on the independent recognition of the human rights of children. These rights are given in essence to every human being in as much as he is a human being, whether adult or minor. The child ‘is a human being with rights and needs of his own’ (LFA 377/05 A v. Biological Parents [21]). The child has the right to grow up in a complete and stable family unit. His welfare demands that he is not separated from his parents and that he grows up with both of them. Indeed, it is difficult to exaggerate the importance of the relationship between the child and each of his parents. The continuity and permanence of the relationship with his parents are an important element in the proper development of children. From the viewpoint of the child, separating him from one of his parents may even be regarded as abandonment and affects his emotional development. Indeed, ‘the welfare of children requires that they grow up with their father and mother within the framework of a stable and loving family unit, whereas the separation of parents involves a degree of separation between one of the parents and his children’ (LCA 4575/00 A v. B [26], at p. 331).

(b) The right of the Israeli spouse to equality

29. The right to equality constitutes an integral part of Israeli law. It is a central element of Israeli common law (see I. Zamir and M. Sobel, ‘Equality before the Law,’ 5 Mishpat uMimshal 165 (1999); F. Raday, ‘On Equality,’ 24 Hebrew Univ. L. Rev. (Mishpatim) 241 (1994); A. Bendor, ‘Equality and Executive Discretion — On Constitutional Equality and Administrative Equality,’ Shamgar Book (Articles, vol. 1, 2003) 287; A. Rubinstein, ‘On Equality for Arabs in Israel,’ Paths of Government and Law: Issues in Israeli Public Law 278 (2003); A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (fifth edition, vol. 1, 1997), at p. 271). Since the establishment of the State, the Supreme Court has repeatedly held that equality is the ‘soul of the whole of our constitutional system’ (per Justice M. Landau, in HCJ 98/69 Bergman v. Minister of Finance [27], at p. 698 {17}). It is ‘a basic constitutional principle, which runs like a golden thread through our basic legal conceptions and constitutes an integral part thereof’ (Justice M. Shamgar in HCJ 114/79 Burkan v. Minister of Finance [28], at p. 806). Equality lies at the basis of social existence. It is the cornerstone of democracy (see HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [29], at p. 415; HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [30], at p. 39). A violation of equality is ‘worse than anything’ (Justice M. Cheshin in HCJ 7111/95 Local Government Centre v. Knesset [31], at p. 503). I discussed this in HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [32]:

‘Equality is a basic value for every democratic society… The individual is integrated within the overall fabric and takes his part in building society, knowing that the others are also acting as he is. The need to ensure equality is natural to man. It is based on considerations of justice and fairness. Someone who wishes his right to be recognized must recognize the right of others to seek similar recognition. The need for equality is essential to society and to the social consensus on which it is based. Equality protects government from arbitrariness. Indeed, there is no more destructive force to society that the feeling of its members that they are treated unequally. The feeling of a lack of equality is one of the worst feelings. It undermines the forces that unite society. It harms a person’s identity’ (Poraz v. Mayor of Tel-Aviv-Jaffa [32], at p. 332; see also HCJ 104/87 Nevo v. National Labour Court [33], at p. 760 {150}).

Indeed, ‘discrimination erodes relationships between human beings until they are destroyed. The feeling of discrimination leads people to lose their self-restraint and leads to the destruction of the fabric of inter-personal relationships’ (per Justice M. Cheshin in Local Government Centre v. Knesset [31], at p. 503).        ‘Discrimination is an evil that undermines the basis of democracy, penetrates and shakes its foundations, until it finally brings about its collapse and destruction’ (HCJ 2618/00 Parot Co. Ltd v. Minister of Health [34], at p. 52). Within this framework, religious or race discrimination is harsh and cruel; such generic discrimination inflicts a ‘mortal wound’ (per Justice M. Cheshin in HCJ 2671/98 Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 658; A. Barak, ‘General Principles of Law in Interpretation of the Law,’ supra, at p. 142). It has therefore been held, in a long line of cases, that discrimination against Israeli Arabs merely because they are Arabs violates the equality that is enjoyed by all Israelis (see HCJ 392/72 Berger v. Haifa District Planning and Building Committee [36]; HCJ 328/88 Avitan v. Israel Land Administration [37]; HCJ 6698/95 Kadan v. Israel Land Administration [38]; HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39]; HCJ 6924/93 Association for Civil Rights in Israel v. Government of Israel [40]; HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41]; see also I. Zamir, ‘Equality of Rights vis-à-vis Arabs in Israel,’ 9 Mishpat uMimshal 11 (2006); A. Saban, ‘The Palestinian Arab Minority and the Supreme Court: Not a Black and White Picture (and Forecast),’ 8 Mishpat uMimshal 23 (2005)). This was well expressed by Justice I. Zamir, who said:

‘A violation of the principle of equality in the narrow sense is considered particularly serious… this is also the case with discrimination against an Arab because he is an Arab, and it makes no difference whether the discrimination is based on religion or on nationality. This is a breach of the principle of equality in the narrow sense. Therefore it is particularly serious. The principle of equality in this sense is the soul of democracy. Democracy demands not merely one vote for each person when there are elections, but also equality for every person at all times. The real test of the principle of equality lies in attitudes to a minority, whether religious, national or any other. If there is no equality for the minority, there is also no democracy for the majority… in a practical sphere, there is special significance in the State of Israel to the question of equality for Arabs. This question involves a complex relationship that has developed between Jews and Arabs in this country over a long period. Notwithstanding, or perhaps for this very reason, we need equality. Equality is essential for co-existence. The welfare of society, and, when considered properly, the welfare of each member of society, requires that the principle of equality is nurtured between Jews and Arabs. In any case, this is the requirement of law, and therefore it is the duty of the court’ (Association for Civil Rights in Israel v. Government of Israel [40], at pp. 27, 28).

(3) Is the right of the Israeli spouse to family life and equality a part of human dignity?

(a) The right to family life as a part of human dignity

30. The right to family life is a part of Israeli common law. Notwithstanding the importance of common law, a statute is capable of violating a right enshrined in common law, provided that the statute is phrased in clear, unambiguous and express language (see HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [42], at pp. 1531-1532; HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [43], at p. 268; HCJ 337/81 Miterani v. Minister of Transport [44], at p. 359; CA 333/85 Aviel v. Minister of Labour and Social Affairs [45], at p. 596; CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [46], at p. 561). The Citizenship and Entry into Israel Law is phrased in clear, unambiguous and express language. Constitutional review of its clear, unambiguous and express provisions is possible only if the right to family life is protected in a Basic Law. The relevant Basic Law for our purposes is the Basic Law: Human Dignity and Liberty. Is the right to family life enshrined and protected in it?

31. The Basic Law: Human Dignity and Liberty does not contain an express provision with regard to the right to family life. The question is whether it is possible to include this right within the framework of the right to human dignity. Is the right to family life a ‘right without a name’ that is derived from the right to dignity (see H. Sumer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 257 (1997))? Note that the question is not whether in addition to the rights set out in the Basic Law: Human Dignity and Liberty it is possible to include additional human rights that are not expressly stated in it. The question is whether within the framework of the rights stated expressly in the Basic Law — in our case, within the framework of the right to human dignity — there is also included an aspect of human dignity which concerns family life. Indeed, the question is not whether there is a ‘lacuna’ in the Basic Law: Human Dignity and Liberty with regard to the right to family life, and whether it is possible to fill this lacuna. The question is whether the interpretation of the right to human dignity leads to a conclusion that within the framework of this express right there is also included the aspect of the autonomy of individual will that is directed towards having a family life and realizing it in Israel. Indeed, the right to human dignity is, by nature, a ‘framework’ or ‘general’ right. The nature of such a right is that, according to its wording, it does not give explicit details of the particular types of activity to which it applies. It is open-ended (see A. Barak, Legal Interpretation: Constitutional Interpretation (1994), at p. 357; CA 2781/93 Daaka v. Carmel Hospital [47], at p. 577 {463}). The situations to which it applies are derived from the interpretation of the open language of the Basic Law against the background of its purpose. These situations can be classified, for convenience, into categories and types, such as the right to a dignified human existence (see LCA 4905/98 Gamzu v. Yeshayahu [48]; HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [49]); the right to physical and emotional integrity (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 59); the right to a name (Efrat v. Director of Population Registry, Ministry of Interior [20]); the right of an adult to be adopted (CA 7155/96 A v. Attorney-General [50]), and similar ‘specific’ rights that are derived from the general right. In constitutional literature they are called derivative constitutional rights norms (see R. Alexy, A Theory of Constitutional Law (2002), at p. 35). Naturally the scope of application of the derivative rights raises difficult questions of interpretation. As long as they have not been separated by the Knesset from human dignity and stated independently, there is no alternative to interpretational activity that focuses on human dignity and seeks to determine the scope of this right, while attempting to formulate the types of cases included in it. Naturally, this categorization will never reflect the full scope of the right to human dignity, nor does it intend to do so. It is intended to assist in understanding the framework provision concerning human dignity (see Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ 25 Hebrew Univ. L. Rev. (Mishpatim) 129 (1995); Sumer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ supra; H.H. Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ HaPraklit Jubilee Book 9 (1994); D. Statman, ‘Two Concepts of Dignity,’ 24 Tel-Aviv University Law Review (Iyyunei Mishpat) 541 (2001); O. Kamir, Question of Dignity (2005). We discussed the scope of the right to human dignity in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [51]:

‘The right to human dignity constitutes a collection of rights which must be safeguarded in order to uphold the right of dignity. Underlying the right to human dignity is the recognition that man is a free entity, who develops his person and his abilities as he wishes in the society in which he lives; at the centre of human dignity is the sanctity of human life and liberty. Underlying human dignity are the autonomy of the individual will, freedom of choice and freedom of action of the person as a free entity. Human dignity is based on the recognition of the physical and spiritual integrity of man, his humanity, his value as a human being, all of which irrespective of the extent of his usefulness’ (Movement for Quality Government in Israel v. Knesset [51], at para. 35 of my opinion; see also HCJ 5688/92 Wechselbaum v. Minister of Defence [52], at p. 827; HCJ 7015/94 Attorney-General v. A [23], at p. 95; HCJ 4330/93 Ganem v. Tel-Aviv District Committee, Bar Association [53], at p. 233; HCJ 205/94 Nof v. Ministry of Defence [54], at p. 457 {9}; Daaka v. Carmel Hospital [47], at p. 577 {463}; Gamzu v. Yeshayahu [48], at p. 375; HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [55], at p. 783; Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518; CA 5942/92 A v. B [56], at p. 842; Gaza Coast Local Council v. Knesset [6], at p. 561; Commitment to Peace and Social Justice Society v. Minister of Finance [49]; HCJ 3512/04 Shezifi v. National Labour Court [57]).

This conception of the right to dignity is based on the conception that the right to dignity ‘should not be restricted merely to torture and degradation, since thereby we will miss the purpose underlying it. We should not extend it to include every human right, since thereby we will make redundant all the other human rights provided in the Basic Laws’ (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518). This leads to the conclusion that the scope of the derivative rights deriving from the general right of human dignity will not always be identical to the scope of the derivative right had it been provided as an express and independent right in the Basic Law. I discussed this in Commitment to Peace and Social Justice Society v. Minister of Finance [49], where I said:

‘In deriving rights that are not mentioned expressly in the Basic Laws that speak of rights, but are included within the concept of human dignity, it is not always possible to comprehend the full scope that the “derivative” rights would have if they were independent rights… Deducing the rights implied by human dignity is therefore done from the viewpoint of human dignity, and in accordance with this perspective. This approach determines the scope of the implied rights. This is the case with regard to the implied civil rights… and it is also the case with regard to the implied social rights’ (ibid. [49], at p. 28).

Against this background the following question arises: is the right of the Israeli spouse to family life in Israel included within the right to human dignity provided in ss. 2 and 4 of the Basic Law: Human Dignity and Liberty?

32. The answer to this question is complex. Not all aspects of family life are derived from human dignity. We must focus on those aspects of family life that are incorporated within the scope of human dignity. The premise is that the family is a ‘constitutional unit’ (see CA 232/85 A v. Attorney-General [58], at p. 17). It is entitled to constitutional protection. This protection is found in the heart of the right to human dignity. It also relies on the right to privacy (see s. 7(a) of the Basic Law: Human Dignity and Liberty). Indeed, the right to live together as a family unit is a part of the right to human dignity. It falls within the scope of the essence of the right to dignity (see CA 5587/93 Nahmani v. Nahmani [59], at p. 499 {14}). One of the most basic elements of human dignity is the ability of a person to shape his family life in accordance with the autonomy of his free will, and to raise his children within that framework, with the constituents of the family unit living together. The family unit is a clear expression of a person’s self-realization. This was discussed by Justice D. Beinisch, who said:

‘In an era when “human dignity” is a protected constitutional basic right, we should give effect to the human aspiration to realize his personal existence, and for this reason we should respect his desire to belong to the family unit of which he regards himself to be a part’ (CA 7155/96 A v. Attorney-General [50]; see also CFH 6041/02 A v. B [60], at p. 256; CA 2266/93 A v. B [61]).

The family ties of a person are, to a large extent, the centre of his life (see Roberts v. United States Jaycees [186], at pp. 618-619). There are few decisions that shape and affect the life of a person as much as the decision as to the person with whom he will join his fate and with whom he will establish a family. This is also the case with regard to the right of parents to raise their children. ‘The law regards the relationship between a parent and his child as a natural right of constitutional dimensions’ (per Justice A. Procaccia in LCA 3009/02 A v. B [61], at p. 894); ‘the right of parents to have custody of their children and to raise them, with all that this implies, is a natural and basic constitutional right as an expression of the natural relation between parents and their children. This right is reflected in the privacy and autonomy of the family’ (per President M. Shamgar in CA 2266/93 A. v. B [61], at p. 235).

33. The right to family life enjoys constitutional protection in the internal law of many countries. It is provided as a constitutional right in the constitution of European countries, such as France (the preamble of the constitution of 1958), Ireland (article 41 of the Constitution of 1937), Spain (article 18 of the Constitution of 1978), Germany (article 6 of the Basic Law), Sweden (article 2 of the Constitution of 1975) and Switzerland (article 14 of the Constitution of 2000). Even in American law, notwithstanding the absence of an express right to family life in the constitution, the right to marry and to have a family life has been recognized as a constitutional right derived from the constitutional rights to liberty and privacy (see Griswold v. Connecticut [187]; Loving v. Virginia [188]; Lawrence v. Texas [189]). We should mention that the family also enjoys protection in international law (see article 16 of the Universal Declaration of Human Rights, 1948; article 23 of the International Covenant on Civil and Political Rights; article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms).

34. Thus we see that from human dignity, which is based on the autonomy of the individual to shape his life, we derive the derivative right of establishing the family unit and continuing to live together as one unit. Does this imply also the conclusion that realizing the constitutional right to live together also means the constitutional right to realize this in Israel? My answer to this question is that the constitutional right to establish a family unit means the right to establish the family unit in Israel. Indeed, the Israeli spouse has a constitutional right, which is derived from human dignity, to live with his foreign spouse in Israel and to raise his children in Israel. The constitutional right of a spouse to realize his family unit is, first and foremost, his right to do so in his own country. The right of an Israeli to family life means his right to realize it in Israel. In this regard, the remarks of Justice M. Cheshin in Stamka v. Minister of Interior [24] are apposite, and in view of their importance I will cite them once again:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family reunifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family reunifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice’ (Stamka v. Minister of Interior [24], at p. 787).

Indeed, the constitutional right of the Israeli spouse — a right that derives from the nucleus of human dignity as a constitutional right — is ‘to live together in the place of their choice.’

35. The question of the relationship between human dignity as a constitutional right and the right to family life in general, and the right to realize this right by means of living together in a family unit in particular, arose in the case of Dawood v. Minister of Home Affairs [242]. The judgment was given by the Constitutional Court of South Africa. The constitution of South Africa (in article 10) includes an express right concerning human dignity (‘Everyone has inherent dignity and the right to have their dignity respected and protected’). The constitution does not include an express provision concerning the right to family life. An ‘ordinary’ statute (the Aliens Control Act 96 of 1991) imposed restrictions on the entry into South Africa of a foreign spouse of a South African citizen. The question arose whether the provisions of the statute violated the right to dignity. The Constitutional Court replied (unanimously) that it was. Justice O’Regan analyzed human dignity as a constitutional value and as a constitutional right, and went on to say:

‘The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most people and to prohibit the establishment of such a relationship impairs the ability of the individual to achieve personal fulfillment in an aspect of life that is of central significance. In my view, such legislation would clearly constitute an infringement of the right to dignity. It is not only legislation that prohibits the right to form a marriage relationship that will constitute an infringement of the right to dignity, but any legislation that significantly impairs the ability of spouses to honour their obligations to one another would also limit that right. A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honour that obligation would also constitute a limitation of the right to dignity’ (Dawood v. Minister of Home Affairs [242]).

A year later, the question arose in South Africa whether a provision in the statute (the same Aliens Control Act), which provided that foreigners who want a work permit must submit their application while they are still outside South Africa, and which restricted the areas of professions for which a work permit may be requested, was constitutional. The High Court of South Africa, Cape of Good Hope Provincial Division, held that it was an unconstitutional provision, since it restricted the ability of spouses to live together, and therefore violated human dignity (Makinana v. Minister of Home Affairs [243]). The Constitutional Court confirmed this ruling unanimously (Booysen v. Minister of Home Affairs [244]).

36. The right to family reunification is also recognized as a component of the right to family life in international law and in the constitutional law of many countries. Thus, article 8 of the European Convention on Human Rights was interpreted by the European Court of Human Rights as including the right of family members to live together, and therefore as imposing restrictions on the validity of the European Union’s policy in the field of immigration. It was held, in a long line of judgments, that decisions concerning immigration that harm the relationship between spouses or the relationship between a parent and his child are likely to violate rights under article 8 of the Convention (see, for example, Berrehab v. Netherlands [230]; Moustaquim v. Belgium [231]; Ciliz v. Netherlands [232]; Carpenter v. Secretary of State [233]).

37. Following the Treaty of Amsterdam (which came into force in 1999), issues of immigration were also transferred to the authority of the European Community. In consequence, the Council of the European Union issued a directive concerning immigration in 2003 (2003/86/EC), which binds all the member states of the Union (except for Denmark, the United Kingdom and Ireland, which were excluded from this directive). This directive is based, inter alia, on article 8 of the European Convention on Human Rights and Fundamental Freedoms, and provides in the preamble that: ‘Family reunification is a necessary way of making family life possible.’ It grants a broad right to the reunification of families for all citizens of the European Union, whether the foreign spouse is a citizen of a member state in the Union or not (see mainly para. 5 of the preamble, articles 2 and 3, and art. 7 which provides a right of family reunification, on the conditions provided there).

38. The right to family reunification is also regarded as an element in the constitutional right to family life in the internal law of many countries. Thus, in 1978, the Conseil d’État in France ruled that an immigration policy that violated the right of citizens of France to live in their country together with their spouse was unconstitutional, since it violated the undertaking of the State, which is provided in the preamble to the Constitution of 1946, to act in order to promote and develop the family (Arrêt GISTI (C.E.) of 8 December 1978). The Constitutional Court (Conseil Constitutionnel) followed this ruling and even extended it. It was held that the constitutional right to family reunification extended also to persons who had a right of residency in France:

‘Considérant que le dixième alinéa du préambule de la Constitution de 1946 dispose que: “La Nation assure à l’individu et à la famille les conditions nécessaires à leur développement”;

Considérant qu’il résulte de cette disposition que les étrangers dont la résidence en France est stable et régulière ont, comme les nationaux, le droit de mener une vie familiale normale ; que ce droit comporte en particulier la faculté pour ces étrangers de faire venir auprès d’eux leurs conjoints et leurs enfants mineurs sous réserve de restrictions tenant à la sauvegarde de l’ordre public et à la protection de la santé publique lesquelles revêtent le caractère d’objectifs de valeur constitutionnelle;…’ (Décision n° 93-325 DC du 13 août 1993).

‘The tenth paragraph of the Preamble to the 1946 Constitution states that: “The Nation shall provide the individual and the family with the conditions necessary to their development;”

As a result of this provision aliens who have resided ordinarily and legally in France have the right to lead a normal family life in the same way as French nationals; this right specifically allows these aliens to send for their spouses and children who are minors on condition of restrictions relating to preserving public order and protecting public health which are constitutional objectives;…’ (Decision 93-325 DC of 13 August 1993).

The right to family reunification has also been recognized in German law as an element of the constitutional protection to the institution of the family that is enshrined in article 6 of the German Basic Law. It has been held that the right to family life does not mean merely the right of each individual to marry, but also the right of the married spouses to have a family life, to live together and to raise their children. For this reason, the constitutional right to family life extends also to the foreign spouse of a German citizen:

‘Denn es gibt im Hinblick auf Ehepartner und Familienangehörige nur eine einheitliche Ehe oder Familie. Dem Leitbild der Einheit von Ehe und Familie und der durch Art. 3 Abs. 2 GG verbürgten Gleichberechtigung der Ehegatten liefe es im Kern zuwider, wenn der Schutzbereich des Art. 6 Abs. 1 GG in persönlicher Hinsicht gegenüber einem dem sachlichen Schutzbereich der Norm unterfallenden Hoheitsakt materiell — wie verfahrensrechtlich auf ein bestimmtes Ehe — oder Familienmitglied beschränkt bliebe.’

‘With respect to spouses and family members, there is only one joint marriage or family. It would be contrary to the essence of the ideal of unity of marriage and family and the equal rights of spouses set down in Art. 3(2) of the Basic Law if the scope of protection afforded by Art. 6(1) were to be substantively and procedurally restricted to a certain marital partner or family member with regard to a sovereign act falling within the norm’s material scope of protection’ (BVerfGE 76, 1 [238]).

The same is the case in the Republic of Ireland, where it was held that the constitutional right of a minor who is a citizen of Ireland to family life may render the state liable to provide permanent residency or citizenship to his parents, even if they entered Ireland unlawfully and they are staying there unlawfully. Justice Finlay wrote:

‘… there can be no question but that those children, as citizens, have got a constitutional right to the company, care and parentage of their parents within a family unit. I am also satisfied that prima facie and subject to the exigencies of the common good that that is a right which these citizens would be entitled to exercise within the State’ (Fajujonu v. Minister of Justice [1990] 2 IR 151; see also S. Mullally, ‘Citizenship and Family Life in Ireland: Asking the Question “Who Belongs?”,’ 25 Legal Studies, The Journal of the Society of Legal Scholars, vol. 25, (2005), 578).

In the United States it has also been held that the right to family reunification is protected within the framework of the constitutional protection given to the right to family life. This subject arose in Fiallo v. Bell [190]. The Immigration and Nationality Act of 1952 that was in force at that time enshrined the right of United States citizens and residents to family reunification. It was provided, inter alia, that United States citizens or residents were entitled to bring their foreign spouses and children into the country. ‘Child’ for the purpose of this law was defined as a legitimate child, step-child or adopted child. In addition, the law allowed an illegitimate child to be brought into the country for the purpose of his reunification with his American mother. No similar right of the father of such a child was recognized. It was alleged that this law was unconstitutional. The Supreme Court accepted the position that a violation of the right of family reunification was a violation of a protected constitutional right, and therefore the statute under consideration was, in principle, subject to judicial scrutiny. Opinions differed as to the question of the level of scrutiny. The majority opinion was that the proper level in this case was the lowest level (rational basis). On this basis, the majority justices held that the statute was constitutional. Justices Marshall, Brennan and White, in the minority, held that the level of judicial scrutiny for the violation of the right to family unity was the most strict level (strict scrutiny), which was applied in cases where a basic constitutional right was violated. On this basis, the minority held that the arrangement was unconstitutional, since it violated the constitutional right of the citizens and residents of the Unites States to equality and family life, in that the right of fathers to be reunited with their (illegitimate) children was denied, whereas such a right was given to mothers. Justice Marshall wrote:

‘…the statute interferes with the fundamental “freedom of personal choice in matters of marriage and family life” … The right to live together as a family belongs to both the child who seeks to bring in his or her father and the father who seeks the entrance of his child’ (Fiallo v. Bell [190] , at p. 810). See also J. Guendelsberger, ‘Implementing Family Unification Rights in American Immigration Law: Proposed Amendments,’ 25 San Diego L. Rev. 253 (1988)).

In summary, we have seen that the right to family life is not merely a basic right in common law, but a constitutional right enshrined in the right to human dignity.

(b) The right to equality as a part of human dignity

39. The right to equality was always an integral part of our common law. The Basic Law: Human Dignity and Liberty did not include an express provision with regard to equality. In the past the question arose whether it is possible to derive the right to equality from the general right to human dignity. On this question, various opinions were expressed in case law and legal literature (see HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [62]; CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [63], at p. 201; Nof v. Ministry of Defence [54], at p. 460 {13}; HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [64], at p. 461; HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [65]; HCJ 453/94 Israel Women’s Network v. Government of Israel [66]; HCJ 4541/94 Miller v. Minister of Defence [67]; HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [68], at p. 204; HCJ 1074/93 Attorney-General v. National Labour Court [69]; Local Government Centre v. Knesset [31], at p. 485; HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39]; see also Y. Karp, ‘Basic Law: Human Dignity and Freedom — A Biography of Power Struggles’, 1 Law and Government, 1992, 323, at pp. 347-351; Sumer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ supra; L. Shelef, ‘Two Models for Guaranteeing Human Rights — American Model versus possible Israeli Model,’ 16 Mehkarei Mishpat 105 (5761), at p. 138; Rubinstein & Medina, The Constitutional Law of the State of Israel, supra, at p. 921; Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ supra; Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ supra, at p. 145; D. Dorner, ‘Between Equality and Human Dignity,’ Shamgar Book (Articles, vol. 1, 2003) 9). This dispute was decided by the Supreme Court in Movement for Quality Government in Israel v. Knesset [51], at para. 40 of my opinion. It was held that the right to human dignity includes the right to equality, in so far as this right is closely and objectively connected with human dignity (see ibid [51], at para. 33). It should be noted that the right to equality is not an ‘implied’ constitutional right: it is not recognized outside the rights expressly provided in the Basic Law. The right to equality is an integral part of the right to human dignity. Recognition of the constitutional aspect of equality derives from the constitutional interpretation of the right to human dignity. This right to human dignity is expressly recognized in the Basic Law. Notwithstanding, not all aspects of equality that would have been included, had it been recognized as an independent right that stands on its own, are included within the framework of human dignity. Only those aspects of equality that are closely and objectively connected to human dignity are included within the framework of the right to human dignity.

40. Does the right of the Israeli spouse to have a family unit in Israel, by virtue of equality with the right of other Israeli couples to have a family unit in Israel, constitute a part of the right of the Israeli spouse to human dignity? The answer is yes. Both the protection of the family unit in Israel, and the protection of the equality of this family unit with the family units of other Israeli couples, fall within the essence of human dignity. The prohibition of discrimination against one spouse with regard to having his family unit in Israel as compared with another spouse is a part of the protection of the human dignity of the spouse who suffers that discrimination.

E.  Does the Citizenship and Entry into Israel Law violate a constitutional right?

(1) The problem

41. The right to human dignity grants every Israeli spouse a constitutional right to have his family life in Israel, thereby enjoying equality with other Israeli spouses. Does the Citizenship and Entry into Israel Law violate this right of the Israeli spouse? The Basic Law: Human Dignity and Liberty provides that ‘One may not violate a person’s dignity in as much as he is a human being’ (s. 2). Only if the Citizenship and Entry into Israel Law violates human dignity does a constitutional question arise in this case. Against this background, the question is whether the right of the Israeli spouse to family life is violated by the provisions of the Citizenship and Entry into Israel Law, and whether this law violates the right of the Israeli spouse to equality. Let us examine each of the questions separately.

(2) The violation of the right to family life

(a) The injury to the Israeli spouse

42. Human dignity as a constitutional right extends to the right of an Israeli to establish a family unit and realize it in Israel. Does the Citizenship and Entry into Israel Law violate this right? Certainly the Citizenship and Entry into Israel Law does not prevent the Israeli spouse from marrying the spouse in the territories. The freedom to marry is maintained. Moreover, usually the Israeli spouse is not prevented from moving to the territories (‘Every person is free to leave Israel:’ s. 6(a) of the Basic Law: Human Dignity and Liberty). Thus he is entitled, of course, to realize his right to have the family unit outside Israel. I assume — without having had all the details submitted to us in this regard — that in most cases the Israeli spouse will receive a permit from the military commander to enter the territories. With regard to the Palestinian authorities, we have not been told that they present any difficulties in this regard. It follows that the main question before us is the question of realizing the life of the family unit in Israel. It concerns s. 2 of the Citizenship and Entry into Israel Law, which states:

‘2.     As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.’

Does this section violate the constitutional right of the Israeli spouse to have a family life and to realize it in Israel?

43. My answer to this question is yes. The right of the spouse to form a family unit is seriously violated if he is not allowed to form this family unit in Israel. The right to have the family unit is the right to realize the family unit in the country of the Israeli spouse. That is where his home is, that is where the rest of his family is, that is where his community is. That is where his historical, cultural and social roots are. The family unit does not exist in a vacuum. It lives in a specific time and place. The law violates this right. Indeed, it is the right of the Israeli spouse that his family should live with him in Israel; it is his right to plant the family roots in the soil of his country; it is his right that his child will grow up, be educated and become an Israeli in Israel. In Stamka v. Minister of Interior [24] the Supreme Court did not say to Israel Stamka: ‘Why are you complaining? Your right to have a family unit with your non-Jewish wife can be realized in the country of the wife.’ The court recognized the right of ‘family members to live together in the place of their choice’ (ibid. [24], at p. 787). That is how a civilized state behaves. This right is violated by the Citizenship and Entry into Israel Law. Indeed, s. 2 of the Citizenship and Entry into Israel Law violates the right of the Israeli spouse to realize his family life in Israel. When the foreign spouse is in the territories, he is prevented from entering Israel. The area commander is not authorized to give the spouse a permit to stay in Israel. The Minister of the Interior is not authorized to give him a licence to enter Israel. None go out and none come in. The family unit is injured.

(b) The injury to the Israeli minor

44. A similar injury befalls the child of the Israeli spouse, in so far as he is himself an Israeli (i.e., that his Israeli parent is a citizen or resident, and the minor lives with him). This minor cannot live with his second parent in Israel. He must decide to remain with his Israeli parent in Israel or to go to his other parent in the territories. This is a heartrending decision according to everyone, and it seriously injures the Israeli minor. It also injures the Israeli parent. If the minor is not Israeli and he is living with one of his parents in the territories, the Citizenship and Entry into Israel Law recognizes (see s. 3A of the law) the possibility of giving him — but not the parent with whom the minor lives in the territories — a permit to enter and a licence to stay in Israel (while distinguishing between minors up to the age of 14 and minors over the age of 14). Even in this case a heartrending decision must be made, which is based on the assumption that the family unit does not live together in Israel.

45. Thus we see that the right of the Israeli spouse and the Israeli child to realize family life in Israel with the foreign spouse is violated. Their right to dignity is violated. In view of these violations caused by the Citizenship and Entry into Israel Law to the human dignity of the Israeli spouse, we must turn to the second stage of constitutional scrutiny, which is the stage of the limitations clause. Before we do so, let us consider whether the Citizenship and Entry into Israel Law violates an additional aspect of human dignity, namely the right of the Israeli spouse to equality. Let us turn now to examine this question.

(3) The violation of the right to equality

(a) The nature of the violation

46. Human dignity as a constitutional right also extends to the right of the Israeli spouse to equality. Does the Citizenship and Entry into Israel Law violate this aspect of human dignity? My answer to this question is yes. The law violates the ability of Israelis who marry spouses who are Palestinians living in the territories to realize their right to family life in Israel. Who are these Israelis? The vast majority of the Israelis who marry Palestinians living in the territories are Arabs who are citizens or residents of Israel. The focus of the violation caused by the law is therefore Israeli Arabs. Admittedly, Israelis who are not Arabs are also not allowed to live in Israel together with Palestinian spouses who are residents of the territories. But the number of these is negligible. The conclusion is that the Citizenship and Entry into Israel Law de facto restricts the right of Israeli Arabs, and only Israeli Arabs, to realize their right to family life. The number of these cases is many thousands. From the figures given to us it appears that between 1993-2001, before the government adopted the new policy (on 15 February 2002) and before the Citizenship and Entry into Israel Law was originally enacted (on 6 August 2003), more than sixteen thousand applications for family reunifications with Arab spouses from the territories were granted in the sense that the spouses from the territories received permits to stay or licences to live in Israel. This is a significant percentage of all the Arab spouses who married in Israel in those years. My conclusion is, therefore, that the Citizenship and Entry into Israel Law results in depriving thousands of Arabs — and only Arabs — who are citizens of Israel of the possibility of realizing their right to family life. A law that has this result is a discriminatory law. A law that causes an injury that focuses almost exclusively on the Arab citizens of Israel violates equality.

(b) Prohibited discrimination or permitted distinction

47. Against this argument, the State raises two lines of defence. The first line of the State’s defence is the argument that the difference in the outcome between the Jewish Israeli couple and the Arab Israeli couple is not prohibited discrimination but a permitted distinction. This argument is based on the classic (Aristotelian) definition of discrimination. According to this, prohibited discrimination is treating equals differently and treating persons who are different equally (see HCJ 678/88 Kefar Veradim v. Minister of Finance [70], at p. 507). According to this approach, equality is explained on the basis of a conception of relevance. This was discussed by Justice S. Agranat:

‘In this context, the concept of “equality” therefore means “relevant equality,” and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [71], at p. 35).

According to this approach, equality does not require identical treatment. Not every distinction constitutes discrimination. ‘Equality between persons who are not equal is sometimes merely an absurdity’ (Justice T. Or in Avitan v. Israel Land Administration [37], at p. 299). Sometimes, ‘in order to achieve equality, one must act by treating people differently’ (HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [72], at p. 11 {30}); ‘discrimination is, of course, a distinction between persons or between matters for irrelevant reasons’ (Justice M. Cheshin in HCJ 6051/95 Recanat v. National Labour Court [73], at p. 311). Indeed, ‘the principle of equality does not rule out different laws for different people. The principle of equality demands that the existence of a law that makes distinctions is justified by the type and nature of the matter. The principle of equality assumes the existence of objective reasons that justify a difference’ (HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [74], at p. 236; see also El-Al Israel Airlines Ltd v. Danielowitz [65], at p. 779 {519}).

48. Against the background of this classic definition of equality, the state argues that the law’s violation only of the right of Israeli Arab spouses to family life is based on a relevant difference. This difference is that only the Arab Israeli spouses wish to bring into Israel spouses who constitute a security risk, when they request to bring into Israel their Arab spouses from the territories. According to the State, ‘there is an objective justification that is based on the professional assessment of the security establishment concerning the risk to Israeli citizens and residents in view of the patterns of how residents of the territories have become residents in Israel by virtue of marriage during the active armed conflict (para. 56 of the closing arguments of February 2006).

49. Indeed, the law would support the state if the Citizenship and Entry into Israel Law provided that an Israeli spouse (whether Jewish or Arab) is not entitled to realize family life in Israel where the foreign spouse presents a security risk. In such a case, a difference would be created, de facto, between the Jewish-Israeli spouses (whose right to realize married life would not be violated by the law) and the Arab Israeli spouses (who would be prevented from realizing their married life in Israel with their Arab spouses from the territories who constitute a security risk). Notwithstanding, this difference would be relevant to achieving the purpose underlying the arrangement.

50. The provisions of the Citizenship and Entry into Israel Law say otherwise. The law does not prohibit the entry into Israel of a spouse who presents a danger to security. The law prohibits the entry into Israel of every Palestinian spouse from the territories, whether he presents a security danger or not. The State did not argue before us that of the sixteen thousand spouses from the territories who entered Israel in order to realize family life in Israel, all or most or even a significant number constitute a security risk. The State argued before us that the number of spouses who constitute a security risk and who are known to the State is small. It is clear, therefore, that even according to the State’s argument, most of the spouses from the territories, whose entry into Israel is being requested by their Israeli spouses, do not constitute a security risk. The distinction on which the Citizenship and Entry into Israel Law is based is therefore not the distinction between the Israeli spouses who wish to bring into Israel foreign spouses that constitute a security risk and Israeli spouses who wish to bring into Israel foreign spouses who do not constitute a security risk. Such a distinction — even if in practice it leads to an outcome that distinguishes between Jewish Israeli spouses and Arab Israeli spouses — is relevant, and its consequences do not involve a violation of equality (discrimination). But the Citizenship and Entry into Israel Law is based on a different distinction, and that is the distinction between foreign spouses of Israelis who are Palestinian residents of the territories, and foreign spouses of Israelis who are not. This distinction is not based on the security risk presented by the Palestinian spouse from the area, since even if there is no information with regard to the risk that he presents, and even were it proved de facto that he presents no danger, his entry into Israel is prohibited. My conclusion is, therefore, that the serious violation of the realization of the right of Israeli Arab spouses — and them alone — caused by the Citizenship and Entry into Israel Law is not based on a relevant distinction.

(c) The violation of equality in the absence of an intention to discriminate

51. The state’s second line of defence is the argument that the purpose of the law was not to discriminate between Jewish-Israeli spouses and Arab-Israeli spouses. The purpose of the law is merely a security one. It was not designed to create a difference between Jewish-Israeli spouses and Arab-Israeli spouses. This argument cannot stand. We accept that the purpose of the Citizenship and Entry into Israel Law is a security one, and that it does not conceal any intention to discriminate against the Arab-Israeli spouse as compared with the Jewish-Israeli spouse. Notwithstanding, the absence of an intention to discriminate has no effect on the existence of the discrimination. Indeed, it is an established case law principle with regard to the rules of equality that the violation of equality (or discrimination) is not examined merely in accordance with the purpose of the allegedly discriminatory norm. According to the law accepted in Israel, the violation of equality (or discrimination) is examined also according to the unintended impact resulting from it (see Nevo v. National Labour Court [33], at p. 759 {149}; El-Al Israel Airlines Ltd v. Danielowitz [65], at p. 759 {487}). A golden thread that runs through the case law of the Supreme Court is the outlook that ‘discrimination is wrong even when there is no intention to discriminate’ (Justice E. Mazza in Israel Women’s Network v. Government of Israel [66], at 524 {450}); ‘the principle of equality looks to the outcome; no matter how pure and innocent a person’s intention, if the outcome resulting from his action is a discriminatory outcome, his act will be declared void ab initio’ (Justice M. Cheshin in Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; see also Nof v. Ministry of Defence [54], at p. 463 {19}; Miller v. Minister of Defence [67], at p. 116 {200}); ‘the question is not merely what is the motivation of the decision-makers; the question is also what is the outcome of the decision. The decision is improper, not only when the motivation is to violate equality, but also when there is another motivation, but equality is violated de facto’ (Poraz v. Mayor of Tel-Aviv-Jaffa [32], at p. 333). I discussed in one case, where I said:

‘The existence or absence of discrimination is determined, inter alia, in accordance with the effect that a piece of legislation achieves de facto… Therefore a law whose wording is “neutral” may be discriminatory if its effect is discriminatory. Indeed, discrimination may be unintentional… Even if the purpose of a legal norm is not to create discrimination, if discrimination is created de facto, the norm is tainted with discrimination’ (HCJ 1000/92 Bavli v. Great Rabbinical Court [75], at pp. 241-242; see also Kadan v. Israel Land Administration [38], at p. 279).

In Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41] I added:

‘… prohibited discrimination may also occur without any discriminatory intention or motive on the part of the persons creating the discriminatory norm. Where discrimination is concerned, the discriminatory outcome is sufficient. When the implementation of the norm created by the authority, which may have been formulated without any discriminatory intent, leads to a result that is unequal and discriminatory, the norm is likely to be set aside because of the discrimination that taints it. Discrimination is not determined solely according to thought and intention of the creator of the discriminatory norm. It is determined also in accordance with the effect that it has de facto… The test for the existence of discrimination is an objective test that focuses on the outcome of realizing the norm that is under scrutiny. It is not limited to the subjective thinking of the creator of the norm. The question is not whether there is an intention to discriminate against one group or another. The question is what is the final outcome that is created in terms of the social reality’ (ibid. [41], at para. 18 of my opinion).

In the case before us, the impact of the Citizenship and Entry into Israel Law is solely to restrict the right of Arab citizens and residents of Israel to family life. This is a discriminatory outcome. This discrimination is not based on a relevant distinction. If we accept it, ‘we will carry out a serious act of discrimination, and we see no proper purpose for the act’ (per Justice M. Cheshin in Stamka v. Minister of Interior [24], at p. 759; see also the remarks of Justice A. Procaccia in HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [76], at pp. 450-451). The conclusion is that the law violates the constitutional right to equality.

(d) Lawful violation of equality

52. Naturally, the discriminatory result vis-à-vis the Arab-Israeli spouse that is caused by the Citizenship and Entry into Israel Law does not automatically lead to the conclusion that the law is unconstitutional. There are many constitutional violations of rights protected under the Basic Laws. This constitutionality exists notwithstanding the violation of human rights. It becomes possible by satisfying the conditions of the limitations clause. This is the law with regard to all human rights. It is also the law with regard to the right to realize family life in Israel. It is also the law with regard to the right to equality. Not every violation of equality — i.e., not every act of discrimination — is unconstitutional. There are constitutional acts of discrimination. These are those acts of discrimination that satisfy the requirements of the limitations clause. I discussed this in one case:

‘Within the sphere of the right to equality, the sole distinction is no longer between equality or a distinction (which are lawful) and discrimination (which is unlawful). Now we must distinguish between the right of equality and the constitutional possibility of violating this right when the requirements of the limitations clause are satisfied. In such circumstances, the executive act is discriminatory: it does not involve a distinction and it violates equality. Notwithstanding, the discrimination is proper, because it befits the values of the State, it is for a proper purpose, and the violation of equality is not excessive’ (HCJ 3434/96 Hoffnung v. Knesset Speaker [77], at p. 67).

And in another case I added:

‘… the right to equality, like all other human rights, is not an “absolute” right. It is of a “relative” nature. This relativity is reflected in the possibility of violating it lawfully, if the conditions of the limitations clause are satisfied’ (Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41], at para. 22 of my opinion).

Thus we see that the response of the state with regard to the security risk presented by the foreign spouse who wishes to realize his family unit with the Arab-Israeli spouse is a response that is not capable of ridding the Citizenship and Entry into Israel Law of its discriminatory nature. The law violates the right of the Arab-Israeli spouse to equality. Notwithstanding, the state can still make the argument that this violation of equality — as well as the violation of the right of the Israeli spouse to realize his family life in Israel — is constitutional, since it satisfies the requirements of the limitations clause. Nonetheless, we ought to understand the effect and ‘geometric’ position of the state’s argument. Its effect is not to rid the Citizenship and Entry into Israel Law of its discriminatory nature. Its position in the first stage of the constitutional scrutiny is therefore ineffective. Despite this, the state may still make the argument — the validity of which we must examine — that this discrimination is lawful, since it satisfies the requirements of the limitations clause. The proper position of this claim is in the second stage of the constitutional scrutiny. Let us now turn to this scrutiny, both with regard to the violation of the right of the Israeli spouse to realize his family life in Israel, and with regard to the violation of his right to equality.

F. Stages of the constitutional scrutiny: 2. Is the violation of the constitutional right lawful?

(1) The purpose, importance and elements of the limitations clause

(a) The transition from the stage of the violation of the right to the stage of justifying the violation

53. We have reached the conclusion that the Citizenship and Entry into Israel Law violates the human dignity of the Israeli spouses. This violation is two-fold. First, the law violates the right of the Israeli spouse to realize his family life in Israel; second, the law violates the right of the Arab-Israeli spouse to realize his right to family life in Israel by virtue of the principle of equality. This conclusion is serious, but it is not fatal to the validity of the law. It does not follow from it that the Citizenship and Entry into Israel Law is not constitutional. Notwithstanding, the constitutionality of the law is in doubt, since a constitutional human right is violated. Now we must turn to the justification stage. It must be shown that the violation of the constitutional right is lawful. We have found that it is not possible to stop the constitutional scrutiny at the first stage (has a constitutional right been violated?), and we must turn to the second stage of constitutional scrutiny (is the breach of the right lawful?). Indeed, there are many laws that violate constitutional human rights, without being unconstitutional (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11 of the judgment). This is because there are constitutional reasons that justify the violation. These reasons are enshrined in the limitations clauses. Some of these clauses are enshrined in the express language of the Basic Law, and some are the product of case law (see Hoffnung v. Knesset Speaker [77], at pp. 70, 75, 76; EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [78], at p. 811; see also the decision in LCA 9041/05 Imrei Hayyim Registered Society v. Wiesel [79]). Moreover, usually the right does not include its own special limitations clause. In such circumstances, that right will be subject to the general limitations clause that provides the conditions for a violation of all the provisions in that Basic Law, whether it is a statutory limitations clause or a judicial limitations clause (see A. Barak, A Judge in a Democracy (2004), at p. 350). But sometimes a specific limitations clause is provided, and this stipulates the conditions for the violation of a specific right or constitutional provision. In these circumstances, the right or constitutional provision is subject to several limitations clauses simultaneously. This is the case because a violation of a right of this kind requires both the conditions of the specific limitations clause and the conditions of the general limitations clause to be satisfied. In the petitions before us, what is relevant is the general limitations clause provided in the Basic Law: Human Dignity and Liberty. Let us now move on to an examination of this.

(b) The general limitations clause in the Basic Law: Human Dignity and Liberty

54. The general limitations clause in the Basic Law: Human Dignity and Liberty is provided in s. 8 of the Basic Law:

‘Violation of rights

8.         The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.’

Similar provisions exist in comparative law (see s. 1 of the Canadian Charter of Rights and Freedoms; s. 36 of the Constitution of South Africa; art. 29 of the Universal Declaration of Human Rights). A limitations clause has a two-fold purpose: on the one hand, it guarantees that the human rights provided in the Basic Law may only be violated when the conditions provided therein are satisfied. On the other hand, it guarantees that if the conditions provided therein are satisfied, the violation of the human rights provided therein is constitutional (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11 of the judgment; HCJ 9333/03 Kaniel v. Government of Israel [80], at p. 17; Gaza Coast Local Council v. Knesset [6], at p. 545).

(c) The centrality of the limitations clause in the constitutional structure

55. The limitations clause is a central element in our constitutional structure (see D.M. Beatty, The Ultimate Rule of Law (2004)). It reflects the idea that the constitutional validity of human rights is based on an overall balance between the rights of the individual and the needs of society as a whole (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 433; Israel Investment Managers Association v. Minister of Finance [8], at p. 384; Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11 of the judgment). ‘It is the foothold on which the constitutional balance between society as a whole and the individual is based’ (Movement for Quality Government in Israel v. Knesset [51], at para. 45 of my opinion). The limitations clause reflects the idea that human rights are not absolute; that they are relative; that it is possible to violate the right of one individual in order to uphold the right of another individual; that it is possible to violate the right of the individual in order to uphold a right belonging to society as a whole. This was discussed by my colleague, Justice A. Procaccia:

‘The limitations clause reflects a balance between the constitutional interests reflected in the basic rights and the needs reflected in the legislation under scrutiny. The basic rights, even though they are supreme rights of a constitutional nature, are not absolute, but they arise from a reality that requires balances to be struck between the duty to uphold important rights of the individual and the need to provide a solution to other worthy interests, whether of an individual or of the public. Finding a harmonious arrangement between all these interests is a condition for a proper social life and for preserving a proper constitutional system… the limitations clause is intended to delineate the boundaries within which primary legislation of the Knesset can be enacted even where it contains a violation of human rights, provided that this violation is found in the proper sphere of the balances between the protection of the right and the need to achieve other important purposes that are involved in violating it’ (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [81], at p. 405).

Indeed, ‘the existence of human rights assumes the existence of society and the existence of restrictions on the free will of the individual’ (Movement for Quality Government in Israel v. Knesset [51], at para. 45 of my opinion).

56. The Basic Law: Human Dignity and Liberty gives a constitutional status to several rights. They are defined in broad terms. Their wording is open. The scope of the application of each one of the rights is not unlimited. The boundaries of each right will be determined in accordance with its constitutional interpretation. This interpretation will determine the boundary between the various rights. It will also determine the areas where several constitutional rights apply and the relationship between them. A change in the scope of application of the constitutional rights requires a constitutional change. It is possible to do this only by means of a Basic Law (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 407; HCJ 4676/94 Meatreal Ltd v. Knesset [82], at p. 27; HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [83], at pp. 755-756; HCJ 1384/98 Avni v. Prime Minister [84]). In all of these the limitations clause has no application. It does not determine the scope of the constitutional rights. Its role is different. It constitutes a part of the Basic Laws themselves, and its status is constitutional. It is intended to uphold the constitutional validity of ordinary legislation that violates constitutional human rights. It is a constitutional umbrella that provides constitutional protection to ‘ordinary’ pieces of legislation that violate human rights. Indeed, the role of the limitations clause is not to be found in the realm of the scope of the constitutional right. The limitations clause does not give constitutional validity to ordinary legislation that seeks to change the scope of the constitutional right. Ordinary legislation cannot determine that a certain matter does not fall within the scope of the constitutional right. The limitations clause acts in a different sphere. Its field of operations is that of ordinary law (as opposed to constitutional law). Ordinary law cannot change human rights. Notwithstanding, this law includes a comprehensive set of laws that are created by the organs of the State. These laws sometimes realize human rights, and in doing so they violate other rights. Sometimes they are intended to achieve the interests of society as a whole, and in doing so they violate the rights of the individual. The limitations clause is intended to give constitutional validity to violations caused by the ordinary law to constitutional human rights. Thus it also determines the extent of the realization of constitutional human rights. Indeed, the role of the limitations clause is to determine the validity of ordinary legislation that violates human rights. The sphere of activity of the limitations clause is the scope of the constitutional right and the limits of its application. The activity of the limitations clause is the realization of the constitutional right by means of the ordinary laws and the degree to which it is protected.

57. The limitations clause is an integral part of the Basic Law: Human Dignity and Liberty. The human right and the constitutionality of the violation of that right are derived from the Basic Law itself. Both the human rights and the limitations clause should be interpreted in accordance with the basic principles and basic purposes of the Basic Law (ss. 1 and 1A of the Basic Law). I discussed this in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], where I said:

‘The constitutional right and its lawful violation derive from a common source… both the constitutional right and the limitation on it are subject to the basic principle on which the Basic Law: Human Dignity and Liberty (s. 1) and its purposes (ss. 1A and 2) are built’ (ibid. [7], at p. 433).

Indeed, human rights and the possibility of violating them derive from the same source. They reflect the same values. Admittedly, human rights are not absolute. It is possible to restrict their realization. But there are limits to the restriction of the realization of human rights (see HCJ 164/97 Conterm Ltd v. Minister of Finance [85], at p. 347 {71}; Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11; Gaza Coast Local Council v. Knesset [6], at p. 545). These limits are enshrined in the limitations clause.

58. The restrictions on the realization of constitutional human rights are of various kinds. One of the accepted and well-known kinds is national security and public safety. These are public interests that justify legislation that contains restrictions on human rights. ‘Indeed, security is a fundamental value in our society. Without security, it is not possible to protect human rights…’ (Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [86], at p. 76 {197}). I discussed this in one case:

‘A constitution is not a recipe for suicide, and civil rights are not a platform for national destruction… civil rights derive nourishment from the existence of the State, and they should not become a means of bringing about its destruction’ (EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [87], at p. 310 {161}).

And in another case I said:

‘There is no alternative — in a freedom and security seeking democracy — to balancing liberty and dignity against security. Human rights must not become a tool for denying public and national security. We require a balance — a delicate and difficult balance — between the liberty and dignity of the individual and national security and public security’ (CrimFH 7048/97 A v. Minister of Defence [88], at 724; see also Ajuri v. IDF Commander in West Bank [1], at p. 383 {120}).

Indeed, ‘human rights are not a prescription for national destruction’ (Conterm Ltd v. Minister of Finance [85], at p. 347 {71}). ‘The needs of society and its national goals may allow a violation of human rights’ (Gaza Coast Local Council v. Knesset [6], at para. 59). It is possible to violate the right of an Arab-Israeli spouse to realize his family life in Israel, and it is possible to discriminate against him if security needs justify this. For this purpose, the law containing the violation must satisfy the conditions of the limitations clause. Let us now turn to examine these conditions.

(d) The conditions of the limitations clause

59. The limitations clause provides four conditions which must all be satisfied in order to allow a constitutional violation of a human right provided in the Basic Law: Human Dignity and Liberty. The four conditions are: (a) the violation of human rights should be enshrined ‘in a law… or in accordance with a law… by virtue of an express authorization therein;’ (b) the violating law should be one that ‘befits the values of the State of Israel;’ (c) the violating law should be ‘intended for a proper purpose;’ (d) the law should violate the constitutional human right ‘to an extent that is not excessive.’ Everyone agrees that the first condition is satisfied in the petitions before us. We have not heard any argument with regard to the second condition, and I will leave it undecided. Aspects of it will be considered within the framework of the third (‘proper purpose’) and fourth (‘to an extent that is not excessive’) conditions. These two conditions are interrelated. One provides the proper purpose, The other provides the proper means of achieving it. As long as we do not know what the purpose is and as long as it has not been established that the purpose is a proper one, we cannot know what are the proper means of realizing it. Let us now turn to each of these two conditions, and let us begin with ‘a proper purpose.’

(2) ‘Proper purpose’

(a) Determining the ‘purpose’

60. This condition of the limitations clause focuses on the purpose whose realization justifies a violation of the constitutional right. Therefore it is necessary to identify the ‘purpose’ of the legislation. It is also necessary to determine whether this ‘purpose’ is a ‘proper’ one. These actions are governed by normative criteria. They sometimes raise significant difficulties. Thus, for example, sometimes the question arises as to how to examine the purpose of a law that has several purposes. In this regard, it has been held that one should focus on the dominant purpose (see Menahem v. Minister of Transport [11], at p. 264). Serious problems also arise with regard to determining the level of abstraction of the purpose, where the law has several purposes at different levels of abstraction. Questions also arise with regard to the criteria for determining the purpose. The question is whether the purpose of a piece of legislation is only its subjective purpose, which focuses on the motive that underlies the legislation; or perhaps the ‘purpose’ of the legislation is only the objective purpose, which focuses on the purpose at the time of deciding the question of constitutionality; or perhaps the ‘purpose’ is determined — as it is with regard to the interpretation of legislation – in accordance with both its objective and subjective purpose together (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 435). These questions become more intense when a significant period of time has passed between the date of the legislation and the date of determining the constitutionality. The petitions before us do not require us to provide an answer to these questions, if only because of the short time that has passed between the date of enacting the Citizenship and Entry into Israel Law and the date of determining its constitutionality.

(b) The ‘proper’ purpose

61. A law that violates a constitutional human right must be enacted for a ‘proper purpose.’ A purpose may be proper in various contexts. With regard to the limitations clause, whether a purpose is proper is examined within the context of the violation of human rights. I discussed this in one case where I said:

‘Examining the question whether the purpose is “proper” is done within the context of the violation of the human right that is protected in the Basic Law. The question that must be answered is whether it is possible to justify the violation of human rights with the proper purpose of the legislation… it follows that the legislation that violates human rights will satisfy the requirement concerning a “proper purpose” if the purpose of that legislation provides a sufficient justification for that violation of human rights’ (Gaza Coast Local Council v. Knesset [6], at para. 63 of the majority opinion).

(c) Characteristics of the proper purpose

62. What are the characteristics of the proper purpose? It has been held that the purpose of a law that violates human dignity is proper if it is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system (see Movement for Quality Government in Israel v. Knesset [51], at paras. 51 and 52 of my opinion, and also United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 434; HCJ 5016/96 Horev v. Minister of Transport [89], at p. 42 {194}; Oron v. Knesset Speaker [10], at p. 662; HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [90], at p. 100; Menahem v. Minister of Transport [11], at p. 264; Gaza Coast Local Council v. Knesset [6], at p. 801 per Justice E. Levy).

(d) The need for realizing the purpose

63. To what degree must the purpose need to be realized for it to be ‘proper’? The answer to this question varies in accordance with the nature of the right that is violated and the extent of the violation thereof. ‘The more important the right that is violated, and the more serious the violation of the right, the stronger must be the public interest in order to justify the violation’ (per Justice I. Zamir in Tzemah v. Minister of Defence [9], at p. 273 {672}; see also Menahem v. Minister of Transport [11], at p. 258; Horev v. Minister of Transport [89], at p. 52 {205}). When the violation is of a central right — such as a violation of human dignity — the purpose of the violating law will justify the violation if the purpose seeks to realize a major social goal, or an urgent social need. It is possible that violations of less central rights will justify a lower level of need.

(3) ‘To an extent that is not excessive’

(a) Proportionality of the violation

64. The requirement that the purpose of the violating law should be a ‘proper’ one focuses on the purpose of the legislation that violates the constitutional human rights. The requirement that the violation of the legislation shall be ‘to an extent that is not excessive’ focuses on the means that the legislator chose. A law that violates a constitutional human right is proportionate only if it maintains a proper relationship between the proper purpose that the law wishes to realize and the means that it adopts to realize that purpose. We are dealing with a ‘dosage test’ (per Justice E. Goldberg in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 574). The main principle that emerges from this condition of proportionality is that ‘the end does not justify the means’ (per Justice T. Or in Oron v. Knesset Speaker [10], at p. 665). ‘Proper purposes do not justify all means’ (Movement for Quality Government in Israel v. Knesset [51], at para. 47 of my opinion). It is not sufficient that the purpose is a ‘proper’ one; the means must also be proper (Movement for Quality Government in Israel v. Knesset [51], at para. 57 of my opinion). A proper means is a proportionate means. A means is proportionate if the law’s violation of the protected right is to an extent that is not excessive. Indeed, the principle of proportionality is ‘intended to prevent an excessive violation of the liberty of the individual. It provides that the executive measure should be determined precisely in order to suit the realization of the purpose. This gives expression to the principle of the rule of law and lawful government’ (HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [91], at p. 12).

(b) Proportionality subtests

65. In Israeli law — following comparative law — an attempt has been made to concretize the requirement of proportionality (for Israeli and comparative sources, see Movement for Quality Government in Israel v. Knesset [51], at para. 57 of my opinion). This concretization ‘is intended to guide constitutional thinking, but not immobilize it’ (Israel Investment Managers Association v. Minister of Finance [8], at p. 385; see also P. Craig, ‘Unreasonableness and Proportionality in UK Law,’ in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (1999) 85, at p. 99). It has been held that the existence of proportionality is conditional upon satisfying three subtests simultaneously. The borderline between the tests is not precise. Sometimes there is significant overlap between them. The application of the subtests themselves is influenced by the nature of the violated right. ‘All three subtests should… be applied and implemented with a view to the nature of the right whose violation is being considered’ (per Justice D. Dorner in Israel Investment Managers Association v. Minister of Finance [8], at p. 430). The application of the subtests is also affected by the degree of the violation, and the importance of the values and interests that the violating law is intended to realize (see Menahem v. Minister of Transport [11], at p. 280, and also D. Dorner, ‘Proportionality,’ Berinson Book (vol. 2, 2000) 281, at p. 288). ‘In applying the test of proportionality, we should remember that the strength of our scrutiny of the authority on the grounds of proportionality will correspond with the strength of the violated right or the strength of the violation of the right’ (Stamka v. Minister of Interior [24], at p. 777). The three subtests are: the rational connection test (or the appropriateness test); the least harmful measure test (or the necessity test); the proportionate measure test (or the test of proportionality in the narrow sense).

(4) The first subtest: rational connection

(a) The nature of the rational connection

66. The first test is the ‘rational connection test’ or the ‘appropriateness test.’ This requires a rational connection between the proper purpose and the measure chosen. Rationality is not technical. It sometimes requires the proof of causal relationships, which are the basis for the rational connection. With regard to these connections, on the one hand we do not need absolute certainty that the measure will achieve the purpose, but on the other hand we will not be satisfied with a ‘slight and theoretical’ possibility (Saif v. Government Press Office [86], at p. 78 {198}). We require the degree of likelihood that is appropriate, taking into account the nature of the right, the strength of the violation thereof and the public interest that the violation is intended to realize. ‘We do not require absolute certainty that the measure will achieve its purpose. It is sufficient that there is a serious likelihood of achieving the purpose by means of the measure that violates the right. The degree of likelihood required will be determined in accordance with the relative importance of the right that is violated and the purpose of the violation’ (per Justice Dorner in Israel Investment Managers Association v. Minister of Finance [8], at p. 420): thus, for example, in Stamka v. Minister of Interior [24] we considered the policy of the Ministry of the Interior, according to which a foreign spouse was required to leave Israel until the application of the Israeli spouse to regulate the status of the foreign spouse was considered on its merits. The court held that this policy was disproportionate. With regard to the rational connection test, Justice M. Cheshin said:

‘The Ministry of the Interior has not furnished us with any relevant statistics, either with regard to the number of fictitious marriages or with regard to the ratio between these and all the marriages between Israeli citizens and non-Jewish foreigners. Let us assume that we are speaking of a fictitious marriage in one out of every ten cases. Can we find a rational connection between the measure and the purpose? Is it a proper rational connection that nine persons should suffer because of one?’ (ibid. [24], at p. 778).

(b) Finding a basis for the rational connection

67. Sometimes the court requests that the ‘social facts’ (or the ‘constitutional facts’) that indicate the rational connection should be presented to it (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 439, and also A. Lamer, ‘Canada’s Legal Revolution: Judging in the Age of the Charter of Rights,’ 28 Isr. L. Rev. 579 (1994), at p. 581). Often —

‘An examination is required of the social reality that the law is seeking to change. What characterizes these cases is that the assessment of the correspondence or the rational connection lies to a large extent in the realm of predicting the future. These are cases in which there are several variables that can affect the final correspondence between the measure and the purpose and the rational connection between them. The appropriateness or the rational connection are then examined in accordance with the “results test” ’ (Movement for Quality Government in Israel v. Knesset [51], at para. 58 of my opinion).

In many cases it is possible to base the rational connection on experience and common sense. On this basis, it is possible to show that the legislation is not arbitrary, but based on rational considerations. The mere fact that the factual assumptions and social assessments are not realized over the years does not necessarily lead to the conclusion that the measure chosen, when it was chosen, was irrational. Notwithstanding, a measure that was rational at the time of the legislation may become irrational in the course of time.

(5) The second subtest: the least harmful measure

(a) The necessity test

68. The second subtest of the proportionality of the violation is the ‘least harmful measure test’ or ‘the necessity test.’ The assumption is that the first subtest recognizes several measures that satisfy the rational connection between the proper purpose and the measure chosen. Of these measures, the measure that least violates the human right should be chosen. According to this test, it is required that the violating law does not violate the constitutional right more than is necessary in order to achieve the proper purpose (see Menahem v. Minister of Transport [11], at p. 279; HCJ 6226/01 Indor v. Mayor of Jerusalem [92], at p. 164). ‘The legislative measure can be compared to a ladder, which the legislator climbs in order to achieve the legislative purpose. The legislator must stop at the rung on which the legislative purpose is achieved and on which the violation of the human right is the least’ (Israel Investment Managers Association v. Minister of Finance [8], at p. 385; see also United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 414). The obligation to choose the least harmful measure does not amount to the obligation to choose the measure that is absolutely the least harmful. The obligation is to choose, of the reasonable options that are available, the least harmful. One must therefore compare the rational possibilities, and choose the possibility that, in the concrete circumstances, is capable of achieving the proper purposes with a minimal violation of human rights. ‘The Knesset is not required to choose, on any terms and at any price, the measure that allows the achievement of the purpose without violating the right at all or the measure that violates the right to the smallest degree’ (per Justice Dorner in Israel Investment Managers Association v. Minister of Finance [8], at p. 420; Menahem v. Minister of Transport [11], at p. 280; see also R. v. Sharpe [215]). A balance must always be made between the purpose and the objective; the options available must always be considered (see Israel Investment Managers Association v. Minister of Finance [8], at p. 388); the nature of the right being violated must always be considered (see HCJ 490/97 Tenufa Manpower Services and Holdings Ltd v. Minister of Labour and Social Affairs [93], at p. 454; Stamka v. Minister of Interior [24], at p. 782). The degree of the violation must always be considered, as must the purpose that the chosen measure seeks to achieve.

(b) Individual consideration

69. The need to adopt the least harmful measure often prevents the use of a blanket prohibition. The reason for this is that in many cases the use of an individual examination achieves the proper purpose by employing a measure that violates the human right to a lesser degree. This principle is accepted in the case law of the Supreme Court (see Ben-Atiya v. Minister of Education, Culture and Sport [91], at p. 15; Stamka v. Minister of Interior [24], at p. 779). In one case we considered a blanket prohibition against candidates over the age of thirty-five joining the ranks of the police. It was held that this arrangement did not satisfy the requirement of adopting the least harmful measure in the proportionality test. In my opinion I said that:

‘…the employer will find it difficult to satisfy the “least possible harm test” if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve’ (HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security [94], at p. 367 {11}).

In another case, a provision that press cards would not be given to Palestinian journalists was disqualified. In her opinion, Justice D. Dorner said:

‘A refusal to give a press badge without any examination of the individual case, because of the danger inherent in all Palestinian journalists who are residents of Judaea and Samaria — including those entitled to enter and work in Israel — is the most prejudicial measure possible. This measure is strongly prejudicial to the interest of a free press, and could be prevented by individual security checks that are justified in order to mitigate the individual security risk presented by the residents of Judaea and Samaria, in so far as such a risk exists with regard to residents who have successfully undergone the checks required in order to receive permits to enter and work in Israel’ (Saif v. Government Press Office [86], at p. 77 {198}).

Naturally, there may be cases in which the individual consideration will not realize the proper purpose of the law, and a blanket prohibition should be adopted. Notwithstanding, before reaching this conclusion, we must be persuaded, on the basis of proper figures, that there is no alternative to the blanket prohibition. Sometimes the choice of the blanket prohibition results from a failure to determine the form of the individual consideration and not because such a consideration is ineffective. In Stamka v. Minister of Interior [24], Justice M. Cheshin held — with regard to the policy of the Ministry of the Interior that required the foreign spouse who was staying in Israel to leave it for a period until his application for a status in Israel was examined — that:

‘The clear impression is that the weakness in the supervision of the Ministry of the Interior was one of the main factors… for the creation of the new policy; and instead of strengthening the effectiveness of the supervision, the Ministry of the Interior took the easy path of demanding that the foreign spouse leave Israel’ (ibid. [24], at p. 770).

70. A blanket prohibition of a right, which is not based on an individual check, is a measure that raises a suspicion of being disproportionate. This is the case in our law. It is also the case in comparative law (see N. Emiliou, The Principle of Proportionality in European Law: A Comparative Study, 1996, at pp. 30, 99). This is the accepted approach in the European Court of Human Rights. Thus, for example, in Campbell v. United Kingdom [234], it was held that a Scottish regulation that provided a sweeping authority to examine the mail received by prisoners from their lawyers violated the right to privacy set out in art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was held that, for the purpose of realizing the security purpose underlying the regulation, it was sufficient to carry out inspections based on individual concerns. This is also the case in the law of the European Union. The European directive that enshrines the right of citizens of the member states to family reunification (Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States) allows, in certain circumstances, a departure from its provisions, but this is only on the condition that the violation of the right is proportionate and is based on a real and tangible individual threat (art. 27(2)):

‘Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned…

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’

71. United States constitutional law recognizes the requirement of proportionality in the sense of the least harmful measure as a condition for the constitutionality of a violation of a human right. Violations of constitutional human rights (such as freedom of expression, freedom of religion, freedom of movement and the prohibition of discrimination) may be constitutional, provided that they satisfy the requirements of ‘strict scrutiny.’ One of the components of this scrutiny is the requirement that, of the possible ways of achieving the public purpose, the state should choose the measure that leads to the least restrictive violation of the right (see L. Tribe, American Constitutional Law, second edition, 1988, at pp. 1037-1038, 1451-1482; E. Chemerinsky, Constitutional Law, 1997, at p. 532). In interpreting this requirement, the Supreme Court of the United States has held that a condition for satisfying the requirement of the least restrictive measure is that the violation of the human right is based on individualized considerations, and is not based on a blanket prohibition. In the words of Justice O’Connor, strict scrutiny —

‘… at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim’ (Employment Div., Ore. Dept. of Human Res. v. Smith [191], at p. 899; see also Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192].

Thus, for example, Aptheker v. Secretary of State [193] considered a law that was enacted in the United States at the time of the Cuban Missile Crisis and that prohibited members of the Communist Party from holding a passport. This law was explained by the security risk presented by the members of the party. The Supreme Court held that the law was unconstitutional. The court recognized the fact that the purpose for which the law was enacted was a proper one, but it held that the blanket prohibition was unconstitutional. After citing the remarks of Justice Black in Schware v. Board of Bar Examiners [194], at p. 246:

‘Assuming that some members of the Communist Party… had illegal aims and engaged in illegal activities, it cannot automatically be inferred that all members shared their evil purposes or participated in their illegal conduct.’

Justice Goldberg later went on to say:

‘The broad and enveloping prohibition indiscriminately excludes plainly relevant considerations such as the individual’s knowledge, activity, commitment, and purposes in and places for travel. The section therefore is patently not a regulation “narrowly drawn to prevent the supposed evil”… yet here, as elsewhere, precision must be the touchstone of legislation so affecting basic freedoms’ (Aptheker v. Secretary of State [193], at p. 514; see also Sugarman v. Dougall [195] at p. 647; Regents of Univ. of Cal. v. Bakke [196]; City of Richmond v. Carson [197]; Johnson v. City of Cincinnati [198]; Gratz v. Bollinger [199]; Grutter v. Bollinger [200]).

(c) Exceptions to the blanket prohibition

72. Even in cases where there is no alternative measure to a blanket prohibition of rights, the need to choose the least harmful measure may make it necessary to provide a mechanism that will allow exceptions to the blanket prohibition, such as humanitarian exceptions. The reason for this is that even if there is no alternative, for the purpose of achieving the proper purpose, to a blanket restriction of rights, there may be circumstances where, on the one hand, the violation of the right is very severe, and on the other hand, an exceptional protection of the right will not impair the realization of the proper purpose. The creation of a mechanism for exceptions is intended to provide an answer to such circumstances. The exceptions mechanism may reduce the law’s violation of the rights, without impairing the realization of the proper purpose. Therefore, the creation of such a mechanism is required by the second subtest concerning the choice of the least harmful measure. Indeed, just as every person with administrative authority is liable to exercise discretion on a case-by-case basis and to recognize exceptions to rules and fixed guidelines when the circumstances justify this (see Y. Dotan, Administrative Guidelines, 1996, at pp. 157-158; HCJ 278/73 Horeh v. Mayor of Tel-Aviv-Jaffa [95], at pp. 275-276; HCJ 6249/96 Israel Contractors and Builders Federation v. Sasson [96], at pp. 47-48; HCJ 552/04 Guzman v. State of Israel [97], at para. 7 of my opinion), so too is it the duty of the legislature, when it makes an arrangement that results in a sweeping violation of rights, to consider providing an arrangement for exceptional cases that will allow a solution to be found in special cases that justify one.

73. The need to determine exceptions to blanket prohibitions that restrict human rights is also recognized in comparative law. This is the law in Germany. In a case that dealt with the sentence imposed on a woman who had murdered her husband after being abused by him over a long period, it was held that a section in the criminal code that provided a mandatory life sentence for the offence of murder was disproportionate, since it did not leave any room for discretion in the individual case, and it did not permit a lighter sentence in circumstances where justices so required (BVerfGE 6, 389 [239]). Another case considered a law that provided that persons who had been indicted and might escape or pervert the course of justice, and also persons indicted on an offence of murder, would be held under arrest for the duration of their trial. In view of the provisions of this law, a man aged 76, who was suspected of an offence of murder during the Second World War, was arrested even though the suspect presented himself for interrogation on every occasion when he was asked to do so throughout the five years of the police investigation, and there was no real concern that he would escape justice. The court ordered his release. It was held that an exception should be recognized to the law in circumstances where the liberty of the accused was violated without this violation serving any proper purpose (BVerfGE 19, 342 [240]; and see Emiliou, The Principle of Proportionality in European Law: A Comparative Study, supra, at p. 546). The need to recognize exceptions is also recognized in United States constitutional law. It has been held that general laws that restrict a constitutional right are unconstitutional, even if they are intended to realize a proper purpose, if the State does not show why it is not possible to recognize exceptions to the general prohibition in special circumstances. As Chief Justice Roberts said in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192]:

‘RFRA [the Religious Freedom Restoration Act], and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person” — the particular claimant whose sincere exercise of religion is being substantially burdened… this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants… The Court explained that the State needed “to show with more particularity how its admittedly strong interest… would be adversely affected by granting an exemption…” (Wisconsin v. Yoder [201], at p. 236)’ (Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192], at para. IIIA).

Thus, in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192], it was held that a law that absolutely prohibits the use of drugs is unconstitutional, since it does not include an exemption that allows the use of a particular drug by the members of a religious group who use that drug for the purposes of religious worship. In another case, the United States Supreme Court held that Wisconsin’s compulsory school-attendance law, which did not allow an exemption for a recognized religious sect (the Amish) that wanted to educate its children privately, was unconstitutional (Wisconsin v. Yoder [201]).

(6) The third subtest: proportionality in the narrow sense   

(a) The proportionate measure test

74. The third subtest of the proportionality of the violation is the ‘proportionate measure test’ or the ‘proportionality test in the narrow sense.’ This test examines the proper relationship between the benefit arising from achieving the proper purpose and the violation of the constitutional right. It concerns ‘the benefit arising from the policy as compared with the damage that it brings in its wake’ (per Justice M. Cheshin in Stamka v. Minister of Interior [24], at p. 782). It examines whether there is a ‘proper correspondence between the benefit that the policy creates and the damage that it causes’ (ibid. [24]). This is a balancing test. It gives expression to the concept of reasonableness (see HCJ 6268/00 Kibbutz HaHoterim Agricultural Cooperative Society v. Israel Land Administration [98], at p. 668; Indor v. Mayor of Jerusalem [92], at p. 164; HCJ 6893/05 Levy v. Government of Israel [99], at p. 890). It requires a contrast between conflicting values and interests and a balance between them according to their weight. I discussed this in Beit Sourik Village Council v. Government of Israel [2]:

‘This subtest examines the benefit as compared with the damage… According to it, a decision by an administrative authority must strike a reasonable balance between the needs of the public and the damage to the individual. The purpose of the examination is to consider whether the seriousness of the harm to the individual and the reasons that justify it stand in due proportion to one another. This assessment is made against the background of the general normative structure of the legal system…’ (ibid., at p. 850 {309-310}; see also Marabeh v. Prime Minister of Israel [5], at para. 110 of my opinion).

This principled balancing between the benefit arising from realizing the proper purpose and the degree of the violation of the right of the individual is not new in Israel. It has been accepted in the case law of the Supreme Court since the founding of the state (see A. Barak, The Judge in a Democracy, 2000, at p. 262). By means of this, a balance should be struck between the extent of the violation of the right and the extent to which the public interest is advanced. With regard to the right, we must take into account the nature of that right, and the scope of the violation thereof. The more basic the right that is being violated, and the more severe the violation thereof, the greater the weight that will be required of the considerations that justify that violation. With regard to the public interest, we must take into account the importance of the interest, and the degree of benefit arising from it by means of the violation of human rights. The more important the public interest, the greater the justification of a more serious violation of human rights (see J. Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality,’ 21 MULR 8 (1997)).

(b) The nature of the test

75. When operating the third subtest, we assume that the purpose which the law that violates the constitutional human right wishes to achieve is a ‘proper’ one. We also assume that the means chosen by the law are suitable (according to the rationality test) for achieving the proper purpose. We further assume that it has not been proved that there are measures that are capable of realizing the proper purpose while violating human rights to a smaller degree. In this normative situation, the limitations clause demands that the violation caused to the human right by the arrangements in the law will be proportionate to the benefit achieved by the realization of the proper purpose. Whereas the rational connection test and the least harmful measure test are essentially determined against the background of the proper purpose, and are derived from the need to realize it, the test of proportionality (in the narrow sense) examines whether the realization of this proper purpose is commensurate with the violation of the human right. ‘The relationship between the measure and the purpose must be proportionate, i.e., it must not be out of due proportion’ (I. Zamir, ‘Israeli Administrative Law as Compared with German Administrative Law,’ 2 Mishpat uMimshal 109 (1994), at p. 131). A proper purpose, a rational connection between it and the provisions of the law and the minimization of the violation of human rights that is capable of realizing the proper purposes are essential conditions for the constitutionality of the violation of human rights. But they are not sufficient in themselves. A constitutional regime that wishes to maintain a system of human rights cannot be satisfied only with these. It determines a threshold of protection for human rights that the legislature may not cross. It demands that the realization of the proper purpose, through rational measures that make use of the lowest level for realizing the purpose, will not lead to a disproportionate violation of human rights. In the words of Chief Justice McLachlin in R. v. Sharpe [215]:

‘The final proportionality assessment takes all the elements identified and measured under the heads of Parliament’s objective, rational connection and minimal impairment, and balances them to determine whether the state has proven on a balance of probabilities that its restriction on a fundamental Charter right is demonstrably justifiable in a free and democratic society’ (R. v. Sharpe [215], at p. 99).

This subtest therefore provides a value test that is based on a balance between conflicting values and interests (see Alexy, A Theory of Constitutional Law, at p. 66). It reflects the approach that there are violations of human rights that are so serious that a law cannot be allowed to commit them, even if the purpose of the law is a proper one, its provisions are rational and there is no reasonable alternative that violates them to a lesser degree. The assessment of the balance between the extent of the violation of the human right and the strength of the public interest that violates the right is made against a background of all the values of the legal system.

(c) Beit Sourik Village Council v. Government of Israel

76. The case of Beit Sourik Village Council v. Government of Israel [2] demonstrates the nature of the test of proportionality (in the narrow sense). The construction of the separation fence in the area of the village of Beit Sourik was determined to be a proper security purpose. A rational connection was proved between the construction of the fence in that place and the achievement of the security purpose. It was held that there was no other route that would harm human rights less but would still achieve the proper purpose in full. Notwithstanding this, it was decided that the route of the fence was unlawful. This was because the security purpose achieved by the route of the fence that was determined was not commensurate with the serious violation of the human rights of the residents of Beit Sourik. We held in that case that ‘a proportionate correlation between the degree of harm to the local inhabitants and the security benefit arising from the construction of the separation fence with the route determined by the military commander does not exist’ (ibid. [2], at p. 850 {310}). We pointed out that we had been shown alternative routes that would provide security for Israel, albeit to a lesser degree than the route that the military commander chose. These alternative routes would violate the human rights of the local inhabitants to a far smaller degree. Against this background we held:

‘The real question before us is whether the security benefit obtained by accepting the position of the military commander… is proportionate to the additional injury resulting from his position… Our answer to this question is that the military commander’s choice of the route for the separation fence is disproportionate. The difference between the security benefits required by the military commander’s approach and the security benefits of the alternate route is very small in comparison to the large difference between a fence that separates the local inhabitants from their lands and a fence that does not create such a separation or that creates a separation which is small and can be tolerated’ (ibid. [2], at pp. 851-852 {311}).

Indeed, in Beit Sourik Village Council v. Government of Israel [2] a proper (security) purpose was the basis for the separation fence; there was a rational connection between it and the achievement of the security purpose; no alternative route was found that realized the security purpose in full. Notwithstanding, the route was disqualified because its violation of the rights of the local inhabitants was disproportionate. We pointed to an alternative route, which allowed security to be achieved to a lesser degree than the proper purpose required to be achieved in full, but which harmed the local inhabitants far less. We said that this correlation — which provided slightly less security and much more protection of rights — was proportionate.

(7) The margin of proportionality and judicial review

(a) The margin of proportionality

77. The proportionality test, with its three subtests, is not a precise test. There is sometimes a significant overlap between the subtests. Within each of these, there is room for discretion. The subtests do not always lead to one and the same conclusion (see Menahem v. Minister of Transport [11], at p. 280). They are not sufficiently precise as to allow such unambiguity. Several solutions may sometimes be adopted in order to satisfy proportionality. Sometimes the case is a borderline one (see Ben-Atiya v. Minister of Education, Culture and Sport [91], at p. 13). A margin of proportionality is created (similar to the margin of reasonableness). Any choice of a measure or a combination of measures within the margin satisfies the requirements of the limitations clause. The legislature has room to manoeuvre within the margin. The choice is subject to its discretion (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 438; Local Government Centre v. Knesset [31], at p. 496; Tenufa Manpower Services and Holdings Ltd v. Minister of Labour and Social Affairs [93]; AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [100], at p. 815; Gaza Coast Local Council v. Knesset [6], at pp. 550, 812; Movement for Quality Government in Israel v. Knesset [51], at para. 61 of my opinion).

(b) Judicial review

78. What is the place and role of judicial review? It protects the limits of the margin of proportionality. It has the role of protecting the constitutional human right so that it is not violated by measures that depart from the margin of proportionality. This gives expression to the principle of the separation of powers. The legislature determines the measures that are to be taken in order to realize social objectives. That is its role. The judiciary examines whether these measures violate the human right excessively. That is its role. One power does not enter the sphere of the other power. The court does not decide for the legislature the purposes that it should realize and the measures that it should choose. These are questions of national policy within the province of the legislature. The court examines whether the purposes and the measures that were chosen by the legislature and that violate a constitutional human right satisfy the limitations that the Basic Law placed on the legislative power of the legislature. I discussed this in one case, where I said:

‘The requirement of proportionality establishes a flexible test. Sometimes it is possible to point to several solutions that satisfy its requirements. In these circumstances, the judge should recognize the constitutionality of the law. Indeed, the basic premise is that the role of legislation was entrusted to the legislature. It is the faithful representative of the people who are sovereign. The national responsibility for enacting laws that will realize a proper purpose through proportionate measures rests, according to the principle of the separation of powers, with the legislature. It has the tools to identify the proper purpose and to choose the proportionate measure. The court does not aim to replace the discretion of the legislature with its own discretion. The court does not put itself in the shoes of the legislature. It does not ask itself what are the measures that it would have chosen had it been a member of the legislature. The court exercises judicial review. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective, justified. The question is whether it is constitutional… What is therefore required is an act of comparing the ends with the means. In this comparison, we must recognize the legislature’s room to manoeuvre or the “margin of appreciation” given to it, which allows it to exercise its discretion in choosing the (proper) purpose and the means (whose violation of human rights is not excessive) that lie on the edge of the margin of appreciation. Indeed, we must adopt a flexible approach that recognizes the difficulties inherent in the legislature’s choice, the influence of this choice on the public and the legislature’s institutional advantage’ (Israel Investment Managers Association v. Minister of Finance [8], at pp. 386-387).

Thus we see that determining the national policy and formulating it into legislation is the role of the legislature. The scrutiny of the constitutionality of the legislation, in so far as it violates the human rights in the Basic Law is the role of the court. It realizes this role with great caution. It will act ‘with judicial discipline, caution and restraint’ (per Justice D. Beinisch in Menahem v. Minister of Transport [11], at p. 263). The judge should treat the law with respect (see Local Government Centre v. Knesset [31], at p. 496). He must ensure respect for the Basic Laws, by virtue of which the law was enacted, and the human dignity which is protected by them. Indeed, the tension is not between respect for the law and human dignity. Respect for the law means that the provisions of the Basic Law concerning human dignity and the possibilities of violating them are equally respected.

G.    Does the Citizenship and Entry into Israel Law satisfy the conditions of the limitations clause?

(1) Is the purpose of the law a proper one?

(a) The purpose of the Citizenship and Entry into Israel Law

79. What is the purpose of the Citizenship and Entry into Israel Law? Opinions are divided on this question in the petition before us. Some of the petitioners and the fourth respondent (the ‘Jewish Majority in Israel’ Society) think that the purpose of the law is not merely a security purpose but also a ‘demographic’ one. According to them, the law is intended to restrict the increase of the Arab population in Israel by means of marriage to residents of the territories. The respondents, however, argued before us that the purpose of the law is merely a security one. I am of the opinion that the respondents are correct. In my opinion, the purpose of the Citizenship and Entry into Israel Law is a security one and its purpose is to reduce, in so far as possible, the security risk from the foreign spouses in Israel. The purpose of the law is not based on demographic considerations. This conclusion is based on the legislative history and the content of the provisions of the law. Indeed, the legislation was based on the security concern with regard to the involvement in terror activity of Palestinian spouses, who hold an Israeli identity card as a result of ‘family reunifications’ with Israeli spouses. The purpose of the law is to reduce this risk in so far as possible. This purpose arises from the explanatory notes to the draft law:

‘Since the armed conflict broke out between Israel and the Palestinians, which led inter alia to dozens of suicide attacks being carried out in Israel, a trend can be seen of a growing involvement of Palestinians who were originally residents of the territories and who have an Israeli identity card as a result of family reunifications with persons with Israeli citizenship or residency, by means of an abuse of their status in Israel that allows them free movement between the areas of the Palestinian Authority and Israel. Therefore, and in accordance with a decision of the government… it is proposed to restrict the possibility of giving residents of the territories citizenship under the Citizenship Law, including by way of family reunification, and the possibility of giving the aforesaid residents licences to live in Israel under the Entry into Israel Law or permits to stay in Israel under the security legislation in the territories’ (draft Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (Draft Laws 31, 2003, at p. 482).

This purpose also arises from the remarks of the Minister of the Interior, who presented the draft law at the first reading (see the minutes of the Knesset session on 17 June 2003). This was repeated by the Chairman of the Knesset Interior and Environmental Affairs Committee, who presented the draft law at the second and third readings (see the minutes of the Knesset session on 31 July 2003). A similar conclusion emerges from a study of the remarks made by Knesset members during the debate on the draft law. Admittedly, from time to time during the legislative process a claim was made that the law was being used by the state as a cover for advancing a ‘demographic purpose’ of restricting the increase of the Arab population in Israel. Government representatives denied this claim. In the arguments before us, the state repeatedly denied, most emphatically, that there was any ‘demographic purpose’ underlying the law. We were presented with details of 26 Palestinian spouses, who benefited from family reunifications and were involved in terror attacks. It was made clear to us that the information that was placed before the government and the Knesset was entirely of a security nature.

80. We can also see the security purpose of the Citizenship and Entry into Israel Law from its provisions. Thus, for example, the law is temporary (a ‘temporary provision’). It does not purport to formulate a new long-term demographic policy. It was designed for the needs of the present. It can be seen from the language of the law and the nature of its provisions that it is based on a security necessity and not on a clear socio-political outlook. The amendments made to the law when its validity was extended in 2005 also indicate the security purpose of the law. Thus, for example, power was given to the Minister of the Interior to approve an application of a spouse from the territories to receive a permit to stay in Israel, and thereby to avoid a separation from the Israeli spouse, if the foreign spouse is a male resident of the territories above the age of 35 or the foreign spouse is a female resident of the territories above the age of 25. This arrangement derives in its entirety from security considerations. It is based on a security assessment that the security risk presented by men over 35 and women over 25 is significantly lower than the risk presented by residents of the territories who do not meet the age criterion.

81. A doubt did arise in our minds with regard to the security purpose of the Citizenship and Entry into Israel Law in view of section 3B(2) of the law, which allows the entry of residents of the territories into Israel for work purposes. The petitioners argue that this section shows that the purpose of the law is not a security one at all, since there is also a security risk from the entry of workers into Israel. The petitioners’ conclusion is that this section indicates the demographic purpose of the law. According to them, the purpose of the law is to prevent the immigration of residents of the territories into Israel for the purpose of family reunifications. The state’s response is that giving citizenship or residency rights to Palestinians, who have an Israeli identity card, constitutes a security threat of a special and distinct kind, which does not merely involve coming into Israel. In view of the fact that the length of the period during which they can stay in Israel is unlimited, and that they have full freedom of movement both in Israel and between Israel and the territories (and this freedom of movement is not given to people holding temporary permits), there is a greater concern that they will take part in terror activity (see para. 180 of the respondents’ closing arguments of December 2003). This response allayed our concerns. We have been persuaded that the distinction between the entry of workers by virtue of temporary permits and the entry of residents of the territories for the purpose of family reunifications is based on security concerns, and therefore it does not imply another purpose.

(b) Are the characteristics of the purpose proper ones?

82. Do the characteristics of the security purpose that underlies the Citizenship and Entry into Israel Law justify a violation of the right of the Israeli-Arab spouse to realize family life in Israel and equality? My answer is yes. The Citizenship and Entry into Israel Law is intended to guarantee security for Israel by reducing, in so far as possible, the security risk presented by Palestinian spouses who live together with their Israeli spouses. It is intended to protect the lives of everyone present in Israel. It is intended to prevent attacks on human life. These are proper purposes. They are intended to protect national security and thereby they protect human life, dignity and liberty. Indeed, just as without rights there is no security, so too without security there are no rights. We are dealing with a delicate balance between security and human rights. As we have seen, ‘there is no alternative — in a freedom and security seeking democracy — to balancing liberty and dignity against security’ (CrimFH 7048/97 A v. Minister of Defence [88], at 741). In order that this balance of ‘liberty and dignity against security’ will take place, we must recognize the legitimacy of liberty and dignity on the one hand, and security on the other. This legitimacy of both sides of the balance is what lies at the heart of the outlook of defensive democracy (see EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [101], at p. 399; Malka v. State of Israel [15], at para. 16, and also A. Sajo (ed.) Militant Democracy, 2004). Democracy’s defensiveness does not deprive it of its democratic nature. Its defensiveness is what protects its democratic nature. This is because of the proper balance that is found between security and human dignity and liberty. Indeed, the purpose of the Citizenship and Entry into Israel Law is a proper one, since it is intended to guarantee security that is intended to preserve human life and security.

(c) Is the extent of the need for realizing the purpose a proper one?

83. Does the violation of the right to realize family life in Israel of the Arab-Israeli spouse, and the resultant violation of his right to equality, constitute a major social objective? Is this an urgent social necessity? My answer to these questions is yes. Terror afflicts the inhabitants of Israel. The murder of innocents and the wounding of many others characterize these acts of terror. Taking steps that reduce the risk of this terror in so far as possible is a major social objective. It is an urgent social need. So it follows that the requirement of the limitations clause that the purpose of the law should be a ‘proper’ one is satisfied. Is this proper purpose achieved proportionately? This is the main question presented by the petitions before us.

(2) Proportionality: is there a rational connection between the purpose of the law and the measures chosen by it?

(a) The blanket prohibition satisfies the required rational connection

84. The purpose of the Citizenship and Entry into Israel Law is a security one. The aim is to reduce the security risk presented by a spouse from the territories who lives permanently in Israel within the framework of family reunification. In the past, several cases (26 in number) have been revealed in which terror organizations abused the status of spouses who were originally residents of the territories and who, when they became Israeli residents or citizens, were entitled to move freely in Israel. In order to prevent this risk, a prohibition was imposed against the entry of foreign spouses into Israel. Does there exist a rational connection between the purpose of the law (reducing the risk presented by the foreign spouse who comes to live in Israel) and the purpose of the law (reducing the risk presented by the foreign spouse who comes to live in Israel) and the measures that were determined (preventing their entry into Israel)? In my opinion, the answer is yes. The prohibition against the entry of the foreign spouses into Israel eliminates the risk that they present. Someone who is not in Israel cannot bring a terrorist into Israel to carry out his ‘designs.’ The blanket prohibition satisfies, in the petitions before us, the existence of the rational connection required under the limitations clause.

(b) The rational connection and temporary stays in Israel

85. The petitioners concentrated their main arguments concerning the question of the rational connection on the provisions of the law that authorizes the commander in the territories to give a permit to stay temporarily in Israel. Section 3B of the law provides:

‘Additional permits

3B. Notwithstanding the provisions of section 2, the area commander may give a permit to stay in Israel for the following purposes:

 

(1) medical treatment;

 

(2) work in Israel;

 

(3) a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.’

According to the petitioners, many thousands of residents in the territories receive work permits in Israel. If these are allowed to enter — so the petitioners claim — why is the entry of spouses from the territories prohibited? If the workers from the area do not constitute a security risk, why do the spouses from the territories constitute a security risk? If it is possible to overcome the risk presented by the workers coming from the territories by a security check of the individual (see s. 3D), why is it not possible to overcome the risk presented by the foreign spouse by such a security check?

86. These arguments do not raise any real question with regard to the rational connection between the prohibition that the law imposes on the entry of spouses from the territories and the purpose of the law. The fact that it possible to realize the purpose of the law by adopting additional measures that are not adopted does not necessarily indicate that the measure that was adopted is not rational. The condition of rationality does not demand that all the possible measures for achieving the purpose are exhausted. Refraining from adopting certain measures — where failing to adopt them does not affect the effectiveness of the measures that were adopted — does not make the measures that were adopted irrational. The requirement of rationality does not offer a choice merely between exhausting all the possible measures or refraining from adopting any measures. A rational choice can satisfy itself with adopting several measures, and not adopting other measures. The Supreme Court of the United States rightly said — with regard to the rational connection test — that:

‘It is no requirement… that all evils of the same genus be eradicated or none at all’ (Railway Express Agency v. New York [202], at p. 110).

The margin of appreciation gives the legislature the possibility of choosing from among various different measures, and the fact that it departs from one of them does not always oblige it, from a rational viewpoint, to choose another. The legislature may, therefore, determine that in order to achieve the security purpose it will adopt the measure of a prohibition of family reunification, and at the same time determine that in order to achieve other purposes, such as those connected with the Israeli national economy or the conditions of life in the territories, it will not prohibit the entry of workers from the territories. As long as realization of the one purpose does not affect the realization of another purpose, we see no problem, from the viewpoint of the requirement of rationality, in adopting this policy.

(3) Proportionality: was the least harmful measure adopted?

(a) The conflicting arguments

87. The proper purpose of the Citizenship and Entry into Israel Law is to reduce the security risk presented by the spouse from the territories who has received a permit to live in Israel or Israeli citizenship. The measure adopted by the law is the prohibition of the entry into Israel of the foreign spouses. The petitioners claim that there is another measure, which realizes the security purpose and violates the human dignity of the Israeli spouse less. This is the measure of individual security checks. If such a check is sufficient for a wife aged 25, it should be sufficient also for a wife aged 24; if it is sufficient for workers from the territories who come into Israel each year in their tens of thousands, it should be sufficient also for those several thousand foreign spouses who wish to enter Israel every year, and if it is necessary to make these individual checks more stringent, that may be done, provided that the blanket prohibition is stopped. Administrative measures may also be adopted, such as methods of identifying the foreign spouses in Israel. In any case, there is no arrangement that guarantees consideration for special cases on a humanitarian basis. To this the State responds that the individual check does not reduce the security risk to the required degree, since sometimes the risk is created years after the spouse enters Israel. The various means of identification suggested are insufficient. Moreover, an individual check is impractical in a time of war, since significant difficulties prevent the investigators from entering the areas of the war in order to make the security check. The respondents say that even a wife aged 25 presents a security risk, but research show that the older the spouse, the smaller the security risk. The State is prepared to take upon itself this reduced risk, but nothing more.

(b) The individual check in the scrutiny of the Citizenship and Entry into Israel Law

88. Is the individual check, as the petitioners claim, the least harmful measure to the right of the Israeli spouse? Naturally, if the sole comparison that us taken into account is between the blanket prohibition and the individual check, it is clear that the harm caused by the blanket prohibition to the Israeli spouse is more severe than the harm caused by the individual check. On the scale of violations of the rights of the Israeli spouse, the individual check is located on a lower level than the blanket prohibition. But this comparison between the two levels is not the examination that is required at this stage of the constitutional scrutiny. The question is not whether the individual check violates the rights of the Israeli spouse less than the blanket prohibition. The question is whether it is possible to achieve the purpose of the law by use of a less harmful measure. If the less harmful measure achieves the proper purpose to a lesser degree, it is not the measure that the legislature is obliged to adopt. The requirement of choosing the least harmful measure applies to the measures that achieve the purpose of the law. So it follows that at this stage of constitutional scrutiny, the question is not whether the individual check violates the right of the Israeli spouse less than the blanket prohibition. The question is whether the individual check achieves the purpose of the Citizenship and Entry into Israel Law to the same degree as the blanket prohibition. If the answer is yes — it does achieve the purpose to the same degree — then the legislature should choose this measure. But if the individual check does not achieve the purpose of the law, the legislature is not obliged to choose this measure. It must choose the measure that realizes this purpose and that violates the right of the Israeli spouse to a lesser degree.

89. We must return, therefore, to the proper purpose of the Citizenship and Entry into Israel Law. We have seen that the purpose of the law is a security one and not a demographic one. What is its security purpose? In this respect, we have seen that the purpose is to reduce, in so far as possible, the security risk presented by the foreign spouses coming to live in Israel. Against the background of this conception of the purpose, do the blanket prohibition and the individual check achieve the purpose to an equal degree? In this regard, we should compare the blanket prohibition, as it exists today, and the most comprehensive individual checks that can be made. But no matter how effective these can be, they cannot equal the additional security that the blanket prohibition provides. It follows that in view of the central value of human life that the law wishes to protect, it is clear that the blanket prohibition will always be more effective — from the viewpoint of achieving the goal of reducing the security risk as much as possible — than the individual check. Our conclusion is, therefore, that in the circumstances of the case before us, the individual check does not realize the legislative purpose to the same degree as the blanket prohibition. There is no obligation, therefore, within the framework of the least harmful measure, to stop at this level, and the legislature was entitled to choose the blanket prohibition that it chose.

90. It is of course possible to argue that the goal that we discussed — to reduce as much as possible the security risk presented by the spouse — is not the objective of the law, and that this objective is to reduce the security risk to some extent, and not as much as possible. According to this line of argument, the permit to stay in Israel given to the resident of the territories whose age is over 35 (for a man) or over 25 (for a woman) (s. 3 of the law) indicates that the purpose of the law was not to reduce the security risk as much as possible, and that the law was satisfied with a lesser reduction than that. It is also possible to point to the permit that is given to stay in Israel for work purposes. To this and similar arguments the state, in our opinion, provided a satisfactory answer. It pointed to the reduced security risk presented when the spouses are older, and also the reduced risk from the residents of the territories who work in Israel. We accept this reasoning. In the opinion of the state, the main risk is presented by young spouses staying in Israel on a permanent basis. This is a security assessment which we must assume as a basis for our decision (see Beit Sourik Village Council v. Government of Israel [2], at p. 842 {300-301}, and the references cited there). It may be argued that reducing the security risk as much as possible is not a ‘proper’ purpose; it is not sufficiently sensitive to human rights. The answer to this argument is that a desire to achieve security as much as possible — security that is intended to protect human life — cannot be regarded as an improper purpose. Notwithstanding, there is still a basis to examine whether this proper purpose is proportionate, since it does not take into account, to a proportionate extent, the violation of human rights. ‘The geometric place’ for examining this argument is not within the framework of the question whether the purpose is a ‘proper’ one, but within the framework of the question whether the means chosen is proportionate (in the narrow sense). Let us turn now to this question.

(4) Proportionality: was the chosen measure proportionate (in the narrow sense)?

(a) Is the move from an individual check to a blanket prohibition proportionate?

91. We have reached the decisive stage in the constitutional scrutiny of the petitions before us. The question is whether the blanket prohibition is proportionate (in the narrow sense)? Is the correlation between the benefit derived from achieving the proper purpose of the law (to reduce as much as possible the risk from the foreign spouses in Israel) and the damage to the human rights caused by it (a violation of the human dignity of the Israeli spouse) a proportionate one? The criterion we must adopt is a value one. We must balance between conflicting values and interests, against a background of the values of the Israeli legal system. We should note that the question before us is not the security of Israeli residents or protecting the dignity of the Israeli spouses. The question is not life or quality of life. The question before us is much more limited. It is this: is the additional security obtained by the policy change from the most stringent individual check of the foreign spouse that is possible under the law to a blanket prohibition of the spouse’s entry into Israel proportionate to the additional violation of the human dignity of the Israeli spouses caused as a result of this policy change?

92. My answer is that the additional security that the blanket prohibition achieves is not proportionate to the additional damage caused to the family life and equality of the Israeli spouses. Admittedly, the blanket prohibition does provide additional security; but it is achieved at too great a price. Admittedly, the chance of increasing security by means of a blanket prohibition is not ‘slight and theoretical.’ Notwithstanding, in comparison to the severe violation of human dignity, it is disproportionate. This was well expressed by Rubinstein and Medina when they said that ‘the measure adopted is clearly not “proportionate,” mainly because of its blanket nature’ (Rubinstein and Medina, The Constitutional Law of the State of Israel, supra, at p. 1100). In the same vein, Davidov, Yovel, Saban and Reichman said:

‘The violations and strictures that are compounded in the new law result in a severe violation, and maybe even a mortal violation, of rights that are close to the “nucleus” of human dignity, without a proper justification based on the conduct and concrete danger presented by the persons injured by the law. In such circumstances, it is difficult to see how any proportionate relationship exists between the serious violation inherent in the law and the hypothetical purpose that the law is intended to achieve. In these circumstances, when the ability of the law to achieve its purpose is uncertain, whereas the violation is certain and serious, the gap between the benefit and the violation in the new law is disproportionate. If there is one exceptional case in which the test of proportionality in the narrow sense is clearly required — this would appear to be that case’ (G. Davidov, Y. Yovel, I. Saban, A. Reichman, ‘State or Family? The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003,’ 8 Mishpat uMimshal, vol. 2, 643 (2005), at p. 679).

Admittedly, the amendments made to the Citizenship and Entry into Israel Law prior to the renewal of its validity somewhat reduced the scope of the disproportionality. Nonetheless, these amendments — as well as the temporary nature of the law — do not change the lack of proportionality to a significant degree. Thus, for example, we were told that s. 3 of the law, with regard to permits for a resident of the territories older than 35 (for a man) or 25 (for a woman) in order to prevent their separation from the Israeli spouses, reduces the number of injured spouses by approximately 20%. The significance of this is that the vast majority of the Israeli spouses who married spouses from the territories continue to be injured even after the amendments that were recently made.

(b) Return to first principles

93. Examination of the test of proportionality (in the narrow sense) returns us to first principles that are the foundation of our constitutional democracy and the human rights that are enjoyed by Israelis. These principles are that the end does not justify the means; that security is not above all else; that the proper purpose of increasing security does not justify serious harm to the lives of many thousands of Israeli citizens. Our democracy is characterized by the fact that it imposes limits on the ability to violate human rights; that it is based on the recognition that surrounding the individual there is a wall protecting his rights, which cannot be breached even by the majority. This is how the court has acted in many different cases. Thus, for example, adopting physical measures (‘torture’) would without doubt increase security. But we held that our democracy was not prepared to adopt them, even at the price of a certain harm to security (see HCJ 5100/94 Public Committee Against Torture v. Government of Israel [102]). Similarly, determining the route of the separation fence in the place decided by the military commander in Beit Sourik Village Council v. Government of Israel [2] would have increased security. But we held that the additional security was not commensurate with the serious harm to the lives of the Palestinians. Removing the family members of suicide bombers from their place of residence and moving them to other places (‘assigned residence’) would increase security in the territories, but it is inconsistent with the character of Israel as a ‘democratic freedom-seeking and liberty-seeking state’ (Ajuri v. IDF Commander in West Bank [1], at p. 372 {105}). We must adopt this path also in the case before us. The additional security achieved by abandoning the individual check and changing over to a blanket prohibition involves such a serious violation of the family life and equality of many thousands of Israeli citizens that it is a disproportionate change. Democracy does not act in this way. Democracy does not impose a blanket prohibition and thereby separate its citizens from their spouses, not does it prevent them from having a family life; democracy does not impose a blanket prohibition and thereby give its citizens the option of living in it without their spouse or leaving the state in order to live a proper family life; democracy does not impose a blanket prohibition and thereby separate parents from their children; democracy does not impose a blanket prohibition and thereby discriminate between its citizens with regard to the realization of their family life. Indeed, democracy concedes a certain amount of additional security in order to achieve an incomparably larger addition to family life and equality. This is how democracy acts in times of peace and calm. This is how democracy acts in times of war and terror. It is precisely in these difficult times that the power of democracy is revealed (W. J. Brennan, ‘The Quest to Develop a Jurisprudence in Times of security Crises,’ 18 Israel Yearbook of Human Rights 11 (1988)). Precisely in the difficult situations in which Israel finds itself today, Israeli democracy is put to the test.

(c) Increasing the effectiveness of the individual check

94. Naturally, everything should be done to increase the effectiveness of the individual checks. Therefore we recognize the constitutionality of the provision of section 3D of the Citizenship and Entry into Israel Law. According to this provision, no permit will be given if it is determined in accordance with a security opinion that ‘the resident of the area or his family member are likely to constitute a security risk to the State of Israel.’ Moreover, the security checks must be treated with great seriousness. Therefore if it is not possible to carry them out because of the security position in one part of the territories or another, the individual check will be postponed until the check becomes possible. If it is necessary to allow the identification of the foreign spouses in Israel as persons who came from the territories, this should be allowed until they reach the age at which the danger presented by them is reduced. There are also grounds for considering additional measures. The severity of these, even if it would in normal circumstance be considered great, cannot compare to the permanent violation of family life and the violation of equality. At the same time, the team carrying out the checks should be increased in a reasonable manner. If this involves a reasonable financial investment, it must be made. ‘The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden’ (Barak, Legal Interpretation: Constitutional Interpretation, supra, at p. 528). ‘When we are concerned with a claim to exercise a basic right… the relative weight of the budgetary considerations cannot be great’ (Justice E. Mazza in Miller v. Minister of Defence [67], at p. 113 {197}); see also the remarks of Justice D. Dorner there at p. 144 {240}). This was well expressed by Justice I. Zamir:

‘Society is judged, inter alia, according to the relative weight it affords to personal liberty. That weight should be expressed not just in lofty declarations nor just in legal literature, but also in the budget ledger. Protecting human rights generally has a cost. Society should be prepared to pay a reasonable price for protecting human rights’ (Tzemah v. Minister of Defence [9], at p. 281 {683}, and see the references cited there).

This is the case generally, and also in times of war and emergency. Indeed, ‘a society that wants both security and liberty must pay the price’ (Marab v. IDF Commander in Judaea and Samaria [3], at p. 384 {217}).

(d) The exception

95. In view of our position with regard to the disproportionality of the blanket prohibition, we do not need to examine exceptions to the blanket prohibition. We will say only that their absence from the law greatly highlights the disproportionality (in the narrow sense) of the blanket prohibition. Why is it not possible to allow a permit to enter Israel in individual cases where there are humanitarian reasons of great weight? In this context, the remarks of President M. Shamgar concerning the reunification of families between foreigners from outside the territories and spouses in the territories should be cited. The President wrote:

‘The respondent’s aforesaid policy and mode of operation includes the weighing of each and every case in accordance with its circumstances, and each case will also be reconsidered if there are unusual humanitarian circumstances’ (HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [103], at p. 216).

(e) Turning to questions concerning the consequences of the unconstitutionality

96. Our conclusion is, therefore, that the provisions of the Citizenship and Entry into Israel Law violate the right of human dignity set out in the Basic Law: Human Dignity and Liberty. We have also held that this violation does not satisfy the provisions of the limitations clause. In so far as the proportionality of the violation is concerned, the disproportionality is reflected in the fact that the law provides a disproportionate relationship between the additional protection of security when changing over from the previous arrangement, which provided for an individual examination, and the additional violation to human dignity that the changeover to the blanket prohibition brings in its wake. In view of our conclusion, the question arises as to what is the consequence of this unconstitutionality. Let us now turn to consider this question.

H. Stages of the constitutional scrutiny: (3) The relief or remedy

97. The final stage in the constitutional scrutiny is the stage of the relief or remedy. We have reached the conclusion that a constitutional right enshrined in a Basic Law has been violated. We have determined that this violation does not satisfy the conditions of the limitations clause. Now we must determine the consequences of the unconstitutionality. The determination that the law unlawfully violates a constitutional right does not in itself mean that the law should be declared void, or that it should be declared void immediately. The court has discretion with regard to the proper relief in this situation (see Israel Investment Managers Association v. Minister of Finance [8], at pp. 413-414; the remarks of Vice-President E. Mazza in HCJ 9098/01 Ganis v. Ministry of Building and Housing [104]). This discretion extends both to the actual declaration that the law is void and to the date on which the voidance comes into effect. The court is not liable to order the voidance of the law in its entirety. It may order the law to be split, so that those provisions of the law that suffer from a constitutional defect are declared void, while the other provisions remain valid. This should be done when the remaining provisions have an independent reason, and the split does not lead to undermining of the purpose of the law (see Barak, Constitutional Interpretation, at pp. 736-737). The court is also entitled to order the date on which the voidance comes into effect to be deferred. This suspension of the declaration of voidance is essential where voiding the law on an immediate basis may result in serious harm to the public interest, and also in order to allow the legislature a suitable period of time to determine an alternative arrangement which will satisfies the demands of constitutionality (see Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41], at para. 27; Israel Investment Managers Association v. Minister of Finance [8], at p. 416; Tzemah v. Minister of Defence [9], at p. 284 {686-687}). The proper relief in circumstances of this kind is therefore to suspend the declaration of voidance (in this regard, see Y. Mersel, ‘Suspending the Declaration of Voidance,’ 9 Mishpat uMimshal 39 (2006)).

98. In our case, my opinion is that there is no alternative to determining that the Citizenship and Entry into Israel Law is void in its entirety. Section 2 of the law is the provision that creates the prohibited violation of the right. Prima facie, declaring s. 2 void would be sufficient, and the remaining sections could be left as they are. But the remaining sections of the law are merely exceptions to the blanket prohibition set out in s. 2. Therefore, in the absence of s. 2, the Citizenship and Entry into Israel Law is devoid of all content. What point is there to an exception when the rule is void? The conclusion is that the law should be declared void in its entirety.

99. Should the legislator be given time to examine the position that results from the voidance of the law, and to consider making an alternative arrangement, by way of a deferral of the date on which it commences? The answer to this question is yes. Determining an alternative arrangement in the sensitive matter before us requires a thorough reassessment of a range of factors with wide-ranging implications. A fitting period of time should be allowed for determining an alternative arrangement. Had the Citizenship and Entry into Israel Law not provided a date on which it ceases to be valid, I would say that the voidance of the law should be suspended for a period of six months. Since the validity of the law expires on 16 July 2006, the declaration of voidance should be suspended until that date. If the government and the Knesset require a limited amount of time, and it seeks, for this purpose, to re-enact the Citizenship and Entry into Israel Law without any change, then I determine that our decision is suspended for six months from the date on which the law comes into effect.

Comments on the opinion of the vice-president, Justice M. Cheshin

100. I have, of course, studied the opinion of my colleague, the vice-president, Justice M. Cheshin. In many respects we are in agreement. Indeed, I accept that every state, including the State of Israel, may determine for itself an immigration policy. Within this framework, it is entitled to restrict the entry of foreigners (i.e., persons who are not citizens or immigrants under the Law of Return) into its territory. The state is not obliged to allow foreigners to enter it, to settle in it and to become citizens of it. The key to entering the state is held by the state. Foreigners have no right to open the door. This is the case with regard to foreigners who have no connection with Israeli citizens. This is the case with regard to foreigners who are married to Israeli citizens and to their children. All of them need to act in accordance with the Citizenship Law, 5712-1952, and in accordance with the Entry into Israel Law, 5712-1952. According to these laws, the foreign spouse has no right to enter Israel, to settle in it or to become a citizen of it, other than by virtue of ordinary legislation. This immigration legislation can restrict entry into Israel, determine general quotas and impose other restrictions that are recognized in civilized countries.

101. My opinion is limited to the viewpoint of the Israeli spouse, who wishes to realize his family life with his foreign spouse or with their joint child in Israel. Here too I do not claim that the Israeli spouse has the power to compel the state to open its gates to the foreign spouse, to allow him to enter Israel, to recognize his residence in it or to grant him Israeli citizenship. As can be seen from my opinion, the state is entitled to enact laws, like the Entry into Israel Law, or the Citizenship Law, which restrict the right of Israeli spouses to a family reunification with their foreign spouses. By virtue of this provision, thousands of foreign spouses from the territories have been prevented from entering or staying in Israel. This leads to my self-evident approach that the Knesset is authorized to enact the Entry into Israel Law, which restricts the entry of spouses from the territories. Indeed, had the Entry into Israel Law provided that the entry of a foreign spouse could be prevented as a result of an individual check with regard to the security danger that he presents, which satisfies the requirements of the limitations clause, I would see no constitutional problem with that law.

102. What, therefore, is the difference of opinion in this case between my colleague’s position and my position? At the basis of the difference of opinion lies the question whether the Israeli spouse has a super-legislative constitutional right to realize his family life in Israel with his foreign spouse and their joint child. My colleague is of the opinion that the Israeli spouse does not have such a constitutional right. Consequently my colleague is of the opinion that legislation that violates the realization of this family life in Israel does not need to satisfy the conditions of the limitations clause, since a constitutional right has not been violated. By contrast, I am of the opinion that the Basic Law: Human Dignity and Liberty does give the Israel spouse this right, as a part of his human dignity. In order to prevent the realization of the right, the requirements of the limitations clause must be satisfied. In my opinion, the provisions of the Citizenship and Entry into Israel Law do not satisfy the conditions of proportionality in the limitations clause. My colleague is of the opinion that had he needed to resort to the provisions of the limitations clause, the Citizenship and Entry into Israel Law would satisfy its conditions. A second difference of opinion between us concerns the violation of equality. My colleague is of the opinion that the right of the Arab-Israeli spouse is not violated, since the Citizenship and Entry into Israel Law is based on a permitted distinction. By contrast, I am of the opinion that this law is based on a prohibited distinction. It should be emphasized that my opinion is not that the key for the foreign spouse to enter the state is in the hands of the Israeli spouse. My position does not lead to the conclusion that ‘recognizing that the state has a constitutional obligation to allow the entry of foreign family members can only mean a transfer of sovereignty to each and every individual citizen’ (para. 55 of my colleague’s opinion). Certainly my position does not grant ‘an automatic right of immigration to anyone who marries one of the citizens or residents of the state’ (ibid.), nor does it therefore lead to the conclusion that ‘every citizen holds the right to allow immigration into the state, without the supervision of the state’ (ibid.). My position leads merely to the conclusion that a recognition of the constitutional right of an Israeli spouse to family reunification with the foreign spouse imposes on the state — which has the ability to determine immigration policy in accordance with its policy and has the power to supervise its policy – the obligation to enact a law that satisfies the requirements of the limitations clause. That was the position before the enactment of the Citizenship and Entry into Israel Law and that will be the position after the necessary amendments are made to this law. Did the state, before the enactment of the Citizenship and Entry into Israel Law, transfer sovereignty to each and every individual citizen? Did the state, before the enactment of this law, give an automatic right of immigration to anyone who married one of the citizens or residents of the state? Did every citizen previously have a right to allow immigration into the state, without the supervision of the state? Where was the Entry into Israel Law until now? And what happened, until now, to the Citizenship Law? Indeed, according to my approach, the key to entering the state remains with the state. It has the power to determine the criteria for immigration, and also to deny it utterly. All that it is required to do is that when it uses this key — in so far as this violates a constitutional right of an Israeli spouse — it should be used in a manner that is consistent with the values of the State of Israel, for a proper purpose and not excessively. No more and no less.

103. My colleague’s position — which rules out the application of the limitations clause in this case — is based on his interpretation of the constitutional right to human dignity. The premise of my colleague and myself in this regard is the same. We both agree that human dignity gives rise to ‘the right of an Israeli citizen to live with the members of his family in Israel, and the duty of the state to the citizen to allow him to realize his right to live with the members of his family in Israel’ (para. 47 of my colleague’s opinion). Therefore, if both of the spouses are Israeli, their right to realize family life in Israel is derived from the human dignity of each of them (para. 48 of my colleague’s opinion). But what is the law when one of the spouses is Israeli and the other is foreign? Here our ways part. According to my position, the human dignity of the Israeli spouse is to live together with his spouse — whether Israeli or foreign — and their children in Israel. According to my colleague’s position, there is a material difference with regard to human dignity between the case where the second spouse is also Israeli and the case where the second spouse is not Israeli. There are two considerations that underlie this approach of his: one is the strength of the constitutional right to have family life in Israel. According to my colleague’s approach, the right to family life lies at the very nucleus of human dignity, whereas the right to bring the foreign spouse to Israel in order to realize family life here lies on the margin or periphery (paras. 59 and 61 of my colleague’s opinion). The other is the public interest in the obligation of the state to all of its citizens to determine the character and identity of the framework of communal life (para. 49 of my colleague’s opinion), and the character of the state (para. 54). In my colleague’s opinion, ‘we ought to allow the public interest to have its say from the beginning, when the scope of the basic right is determined’ (para. 56 of my colleague’s opinion). In my opinion, these considerations of my colleague should not be accepted, and they are incapable of denying the Israeli spouse of his right — a right derived from human dignity that may, of course, be restricted when the conditions of the limitations clause are satisfied — to realize family life with the foreign spouse in Israel. I will discuss this approach of mine in brief, and I will begin with my colleague’s ‘strength’ argument.

104. In my opinion, the right of the Israeli spouse to realize his family life with the foreign spouse in Israel lies at the very nucleus of the right to family dignity. Let us always remember that human dignity is the dignity of ‘man as a human being’ (s. 2 of the Basic Law: Human Dignity and Liberty). If the realization of family life in Israel is part of the nucleus of human dignity when both of the spouses are Israeli, then the realization of family life in Israel is part of the nucleus of human dignity when only one of the spouses is Israeli. From the viewpoint of the Israeli spouse, how is the case where the other spouse is Israeli different from the case where the other spouse is foreign? Human dignity — the nucleus of human dignity — is identical in both cases. In both cases, if the spouses do not live together (in Israel or outside Israel), they are unable to realize their family life. But this is not all; even if the right of the Israeli spouse to realize his family life with the foreign spouse in Israel lies on the margin or the periphery of the right to human dignity, it is still part of the human right, and it cannot be violated without satisfying the conditions of the limitations clause. Indeed, I am of the opinion that making a distinction between a violation of the nucleus of the right (which is subject to the limitations clause) and a violation of its periphery (which lies beyond the scope of the right and therefore is not subject to the limitations clause) violates the constitutional protection of human rights. This distinction excludes the marginal or peripheral cases from the scope of constitutional protection, and it thereby drains human rights of a significant part of its content, namely the marginal or peripheral cases.

105. My colleague holds that taking into account the public interest in determining immigration policy excludes from the constitutional right to family life the right of the Israeli spouse to realize his family life with the foreign spouse in Israel. In my opinion, taking the public interest into account — no matter how important it may be — must be done within the framework of examining the conditions of the limitations clause (the second stage of the constitutional scrutiny) and not within the framework of determining the scope of the constitutional right itself (the first stage of the constitutional scrutiny). This is the case with regard to the right to family life and it is also the case with regard to every other constitutional right (see Alexy, A Theory of Constitutional Law, supra, at p. 196; R. Dworkin, Taking Rights Seriously, 1977, at p. 90; C.S. Nino, The Ethics of Human Rights, 1991, at p. 29). The methodology adopted by my colleague will eventually reduce the constitutional protection given to human rights to a significant degree. It is likely to lead, for example, to an approach that taking into account the public interest, such as national security or public safety, with regard to the right to freedom of expression, should find its place in determining the scope of freedom of expression and not it determining the constitutional possibility of violating it. Changing the ‘place’ of the public interest is not a mere technical or methodological matter. It is a matter with deep implications for human rights in Israel. It involves a drastic reduction in the scope of human rights. Indeed, the system adopted by this court, according to which the place of the public interest lies within the framework of the limitations clause, may give constitutional protection to a law that violates a constitutional human right, while protecting the scope of the human right. By contrast, the role of the public interest within the framework of determining the scope of the human right, as my colleague holds, is likely to reduce the right itself. According to my colleague’s methodology, balances whose proper place is in the limitations clause — when examining the values of the State of Israel, the proper purpose of the legislation and its proportionality — are made within the framework of determining the scope of the right itself, by imposing the burden on someone whose right has been violated. Thus this approach departs from a whole host of decisions, in which it has been held that taking account of the public interest finds its place in the stage of examining the violation of the right (such as freedom of expression) and not in the stage of determining the scope of the right (see HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [105]; CrimA 2831/95 Alba v. State of Israel [106], at pp. 303, 316; F. Schauer, Free Speech: A Philosophical Enquiry (1982)). This opens up a new constitutional path that raises questions concerning the various balancing formulae that should be used and their relationship to the balancing formulae in the limitations clause.

106. What is more, this approach amounts to ‘an undermining of the constitutional balance’ (CrimA 4424/98 Silgado v. State of Israel [107], at p. 550); it involves a dilution of the constitutional protection of human rights in Israel. It leads us, in my colleague’s words, to place in ‘doubt whether the Basic Laws were originally intended to give basic rights to the individual while directly influencing the other individuals in the state and the image of society’ (para. 62 of my colleague’s opinion; see also para. 39 of my colleague’s opinion). But in my opinion there is no doubt in this regard. Basic human rights in Israel exist and are recognized precisely where they are capable of directly influencing ‘the other individuals in the state and the image of society.’ It is precisely then that we need them most in order to protect our values as a Jewish and democratic society. Our role as judges, at this stage of our national life, is to recognize in full the scope of human rights, while giving full strength to the power of the limitations clause to allow a violation of those rights, when necessary, without restricting their scope.

107. It should be noted that I do not hold that basic rights should be extended in every direction. I hold that they should be given a purposive interpretation. This interpretation is neither a restrictive nor an expansive one. It is an interpretation that reflects the way in which Israeli society understands the nature of human rights, according to their constitutional structure and according to the constitutional principles provided in the Basic Law, all of which while taking into account what is valuable and essential and rejecting what is temporary and fleeting (see Efrat v. Director of Population Registry, Ministry of Interior [20], at p. 780; Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518; Commitment to Peace and Social Justice Society v. Minister of Finance [49]). Moreover, I do not believe that giving a purposive interpretation to basic rights, while taking into account the public interest within the framework of the limitations clause, constitutes a violation of the principle of the separation of powers. There is nothing in the principle of the separation of powers to the effect that the court should give a restrictive interpretation to human rights, in order to limit the scope of judicial review of the constitutionality of a law. There is nothing in the principle of the separation of powers that leads to the conclusion that judicial review of the constitutionality of the law violates the separation of powers. On the contrary, this review protects the limits of the power of the various executive organs and protects human rights. This is also the function of the separation of powers. Finally, I do not think that my colleague’s approach leads to ‘a more comprehensive and careful scrutiny of legislation’ (para. 42 of his opinion). On the contrary, the more the public interest is taken into account within the framework of determining the scope of the right, the smaller will be the role of the limitations clause, and the smaller will be the possibility of a comprehensive and careful scrutiny of legislation. Instead of focusing on the violating law, the analysis will focus on the violated right. Instead of a requirement that the legislature should enact laws that satisfy the limitations clause, there will be a requirement that the court should reduce the scope of human rights.

108. This position of mine with regard to the scope of a constitutional right (such as human dignity) and the restrictions on it (in the conditions of the limitations clause) applies both in times of peace and calm and in times of war and terror. The armed conflict between Israel and the Palestinians in the territories does not change the scope of the human rights belonging to Israeli citizens. Our right to human dignity, privacy, property and freedom of occupation did not change when Hamas won the recent elections in the territories. Basic rights do not change according to the winds of peace or war that blow through our region. Taking the security position into account — which is of course essential and requisite — should be done within the framework of the limitations clause. For this reason, I accept my colleague’s approach that ‘even those who support the position that the Israeli citizen should have a right — a constitutional right or a legal right — to have his foreign family member enter Israel and reside in it will agree that reasons of national security and public security should qualify the right of the individual to have his family member enter the country and reside in it’ (para. 77 of his opinion). Notwithstanding, it should be re-emphasized that the expression ‘will qualify the right of the individual’ does not mean that his constitutional right as determined in the Basic Laws has been changed and reduced. The meaning of this expression is that the realization of the right and the protection given to it in legislation has been restricted for reasons of national security and public security, as required in the limitations clause. When these pass — and we all aspire to this — no change will occur to the constitutional right itself. It will remain as it was. The change will occur to the possibility of realizing it. Therefore I agree with my colleague’s approach that ‘a time of war is not the same as a time of peace’ (para. 82 of his opinion), and that ‘things which are appropriate in a time of peace cannot be maintained in a time of war’ (ibid.). Nonetheless, this change should find its full expression within the framework of the limitations clause. It should affect the realization of the right. This change is not capable of affecting the existence of the right and the scope of its application. Therefore, we cannot agree with his conclusion ‘that in times of war there arise — or you may say, there awaken — considerations and interests that are unique to this time, considerations and interests that can restrict the spheres of application of the rights of the individual’ (ibid.). The unique considerations and interests in times of war must act within the framework of the limitations clause, and within the framework of the constitutional right itself. They do not restrict ‘spheres of application of the rights of the individual.’ They restrict the possibility of realizing them.

109. Assuming that the Citizenship and Entry into Israel Law violates the constitutional right, is this violation proportionate? My colleague and I agree that the first two conditions of proportionality — the rational connection test and the least harmful measure test — are satisfied in our case. The difference of opinion between us concerns the third subtest (the test of proportionality in the narrow sense, or the ‘value test,’ as my colleague calls it). Even with regard to this subtest, we both agree that the blanket prohibition provided in the Citizenship and Entry into Israel Law provides more security to the citizens and residents of the State than the individual check. The framework of the doubts is therefore this: is there a proper proportion between the additional security obtained by changing over from the individual check (which was used in the past) to the blanket prohibition (which was introduced by the Citizenship and Entry into Israel Law) and the additional violation of the human dignity of the Israeli spouses caused by this change? My colleague’s reply is that ‘the additional security — security for life — that the blanket prohibition gives us as compared with the individual check that is limited in its ability [is] proper’ (para. 122). By contrast, I am of the opinion that the additional security provided by the blanket prohibition is not proportionate in comparison with the additional damage caused to the family life and equality of the Israeli spouses.

110. My colleague puts on one pan of the scales life itself. ‘We are concerned with life. Life and death. It is the right of the residents of the state to live. To live in security. This right of the individual to life and security is of great strength. It has chief place in the kingdom of rights of the individual, and it is clear that its great weight is capable of determining decisively the balance between damage and benefit’ (para. 120 of his opinion). Against this he places on the other pan the right to have family life (ibid.). Indeed, I accept that if we weigh life against quality of life — life will prevail. But is this the proper comparison? Had we posed the question in this way — life against quality of life — we would certainly have held that we are permitted, and perhaps even obliged, to torture a terrorist who constitutes a ‘ticking bomb’ in order to prevent harm to life; that we are permitted, and perhaps even obliged, to reassign the place of residence of an innocent family member of a terrorist in order to persuade him to refrain from terror and to prevent an injury to life; that the security fence should be placed where the military commander wished to place it, since thereby the lives of the citizens of the state are protected, and any harm to the local population, whatever its scope may be as long as it does not harm life itself, cannot be compared to the harm to the lives of the citizens of the state. But this is not how we decided either with regard to torture, or with regard to assigned residence or with regard to the harm caused by the separation fence to the fabric of the lives of the local residents (see, respectively, Public Committee Against Torture v. Government of Israel [102]; Ajuri v. IDF Commander in West Bank [1]; Beit Sourik Village Council v. Government of Israel [2]). In those cases and in many others we always put human life at the top of our concerns. We were sensitive to terror and its consequences in our decisions. Indeed, human life is dear to us all; and our sensitivity to terror attacks is as strong as in the past. We made the decisions that we made because we do not weigh life against the quality of life. In doing so, life always takes precedence and the result is to refrain from any act that endangers human life. Society cannot operate in this way, either in times of peace (such as with regard to road accident victims) or in times of war (such as with regard to victims of enemy attacks). The proper way of posing the question is by means of the level of the risks and the likelihood that they will occur, and their effect on the life of society as a whole. The questions that should be asked in our case are questions of probability. The question is what is the probability that human life will be harmed if we continue the individual check as compared with the likelihood that human life will be harmed if we change over to a blanket prohibition, and whether this additional likelihood is comparable to the certainty of the increase caused thereby to the violation of the rights of spouses who are citizens of the state.

111. Now that we have begun discussing the issue of risk, we must declare openly that democracy and human rights cannot be maintained without taking risks. Professor Sajo rightly said that ‘liberty is about higher risk-taking’ (A. Sajo (ed)., Militant Democracy (2004), at p. 217). Indeed, every democracy is required to balance the need to preserve and protect the life and safety of citizens against the need to preserve and protect human rights. This ‘balance’ simply means that in order to protect human rights we are required to take risks that may lead to innocent people being hurt. A society that wishes to protect its democratic values and that wishes to have a democratic system of government even in times of terror and war cannot prefer the right to life in every case where it conflicts with the preservation of human rights. A democratic society is required to carry out the complex work of balancing between the conflicting values. This balance, by its very nature, includes elements of risk and elements of probability (see, in this regard, C.R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005), at pp. 204-223; J. Waldron, ‘Security and Liberty: The Image of Balance,’ The Journal of Political Philosophy, vol. 11 (2003), at pp. 191-210; M. Freeman, ‘Order, Rights and Threats: Terrorism and Global Justice,’ in Human Rights in the War on Terror (R. Wilson, ed., 2005), at pp. 37-56). Naturally, we must not take any unreasonable risks. Democracy should not commit suicide in order to protect the human rights of its citizens. Democracy should protect itself and fight for its existence and its values. But this protection and this war should be carried out in a manner that does not deprive us of our democratic nature.

112. In this perception, the comparison in our opinion is not between life and family life. The comparison is between the risk to life and the likelihood that the right to life will be violated as compared with the certainty of the violation of family life. In my opinion, the additional security caused by changing from an individual check to a blanket prohibition of the entry of husbands up to the age of 35 and wives up to the age of 25 cannot be compared to the additional damage to the Israeli spouses as a result of the violation of their right to family life. Indeed, if an individual check is proper, from the viewpoint of the risks that should be taken in our defensive democracy, when the husband reaches 35 and the wife reaches 25, why does it become improper, from the viewpoint of the risks, when they have not yet reached these ages? This question is asked mainly against the background of the state’s position, which it repeatedly stated before us and which my colleague discussed in his opinion, that the concern is with regard to a change in the position of the foreign spouse after entering Israel. My colleague asks: ‘who therefore is so wise that he does not suspect that a resident of the territories may become associated with a terror organization after receiving Israeli documentation? (para. 111 of his opinion). Indeed, the suspicion certainly exists. As the years pass, this concern may even increase. And yet, notwithstanding this concern, the state decided — rightly, in my opinion — that this concern is insufficiently serious in order to reject an individual check and in order to necessitate a blanket prohibition for husbands aged 35 or more and wives aged 25 or more. The same is true of the transition provisions included in the Citizenship and Entry into Israel Law, which my colleague discusses (in para. 123 of his opinion). These provisions provide that the Minister of the Interior or the military commander in the territories may give licences to live and permits to stay in Israel to residents of the territories who filed their application for family reunifications before 15 May 2002, subject to an individual check of the risk presented by him. My colleague calculates the number of those persons who may benefit from the transition provisions at approximately 16,000. So we see that with regard to these thousands the state remains satisfied to carry out individual checks, notwithstanding the risk involved therein. The violation that would be caused by applying the law retroactively appears to the state — and rightly so — too serious a violation of the rights, which ought to be avoided even at the price of the security risk involved therein. The same is true of residents of the territories who enter Israel for work purposes. Also with regard to them the state is satisfied to carry out an individual check, notwithstanding the risk inherent in this. The needs of Israeli society for the work of these people seems to the state — and in my opinion, rightly — to be creating a risk that should be taken. Against the background of all of these, it is difficult, very difficult, to give such great weight to the risk that arises from holding an individual check, which is right and proper for spouses over the age of 35 (for husbands) and over the age of 25 (for wives), for spouses who submitted their request before the effective date, and for workers from the territories, precisely in the case of the other foreign spouses who wish to enter Israel. Once again, were we to place before us human life only, we would be obliged to reach the conclusion that whatever the age of the foreign spouses, a blanket prohibition should be applied to them; we would also be liable to determine that family reunifications should not be allowed, irrespective of the question of when the application was filed; we would also be liable to determine that workers should not be allowed at all to enter from the territories. But this is not what the Citizenship and Entry into Israel Law provides. If the state is prepared to take the risks to human life that its policy — which refrains from a blanket prohibition and is satisfied with an individual check — causes with regard to spouses over the ages of 35 and 25, and if the state was prepared to take the risks of giving entry permits to spouses who filed their application before the effective date, and if the state was prepared to take the risks in allowing workers from the territories to enter Israel and is satisfied with an individual check, it is a sign that the risk presented by being satisfied with an individual check is not so large that it can justify the serious violation to the family life of the Israeli spouses.

113. Naturally, everything should be done in order to increase the effectiveness of the individual check. In this regard, the Citizenship and Entry into Israel Law contains provisions with regard to the individual check of those persons to whom the blanket prohibition does not apply (s. 3D of the law). It is possible, of course, to exercise these provisions with regard to everyone who undergoes an individual check. It is also possible to propose additional measures that can be taken. Thus, for example, it is possible to give weight to the fact that the Israeli spouse applied originally to the respondents and asked that an individual check should be made. Of course, if de facto there is no real possibility of receiving relevant information from an individual check of a foreign spouse because of the security position, there is no alternative to deferring the decision concerning him until the individual check becomes possible. Where fighting is taking place checks are not carried out; where there is no possibility, because of the security conditions, of making a check, it should be deferred until the conditions change. All of these will be determined in accordance with the conditions of the time and place; they will be governed by a blanket prohibition. Therefore, with regard to those spouses for whom the individual check is possible, it should be made. In such situations the disproportionality of the blanket prohibition stands out. Why should the Israeli spouse not be allowed to have a family life in Israel with the foreign spouse, when a reasonable check shows that the foreign spouse does not constitute a security risk at the time of the check, and there exists little risk that this will change in the future? Even if the burden of proof is placed, in this regard, on the Israeli spouse, why should he be deprived of the possibility of proving that the burden has been discharged?

Conclusion

114. The decision in these petitions is difficult. ‘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’ (Beit Sourik Village Council v. Government of Israel [2], at p. 861 {323}). As judges, we know that we must find a proper balance between human rights and security. ‘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’ (Ajuri v. IDF Commander in West Bank [1], at p. 383 {120}). We discussed this in Public Committee Against Torture v. Government of Israel [102], which concerned the use of violence in order to save human life from a terrorist who was alleged to be a ‘ticking bomb.’ These remarks are also apposite in this case:

‘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 her enemies are not always open to it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of the individual constitute important components in its understanding of security. At the end of the day, they strengthen her spirit and this strength allows it to overcome its difficulties’ (ibid. [102], at p. 845 {605}).

Were my opinion accepted, the result would be that the Citizenship and Entry into Israel Law is void. The declaration of the law’s voidance is suspended until 16 July 2006.

 

 

Vice-President Emeritus M. Cheshin

When I received the opinion of my colleague, President Barak, I put my hand in his and allowed him to lead me along his path. So we followed paths that were paved with basic principles, we ascended mountains with summits of basic rights, we transversed doctrines, we descended into specific rules of law, and on our way we were continually accompanied by justice, truth, integrity and common sense. Towards the end of the journey, we boarded a ship and we reached an island in the middle of the ocean. We disembarked, and on the pier a dignified person greeted us.

‘Welcome,’ the man welcomed us with a kind expression.

‘Greetings,’ we replied, and added: ‘We are from Israel, from the Supreme Court of Israel. And who are you, sir?’ we asked.

‘My name is Thomas, Thomas More, also known as Thomas Morus.’

‘Very pleased to meet you. And what is this place?’ we asked.

‘You are in the state of Utopia,’ the man replied, and added: ‘The state of Utopia was established according to a plan that I outlined in a book that I wrote, which has the same name as the state, Utopia. By the way,’ the man added, ‘the word Utopia is from Greek, and it means “nowhere”.’

‘Interesting, very interesting,’ we said, ‘And as persons of the law, let us also ask you this: what is the legal system in Utopia? Is it similar to the legal system in Israel?’ (Our assumption was, of course, that this wise man knew the Israeli legal system).

Mr More immediately answered: ‘I am sorry, but there are vast differences between the two legal systems, and it will be a long time before Israel reaches the level of Utopia. At this time, you are fighting for your lives, for the existence of the state, for the ability of the Jewish people to have a communal and national life like all peoples. The laws of Utopia — in the position you find yourselves in at present — are not for you. Not yet. Take care of yourselves, do the best you can, and live.’ Thus spoke the man, and he said no more.

Then I awoke, and it was a dream.

* * *

The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (‘the law’ or ‘the Citizenship and Entry into Israel Law’) tells us that, subject to various exceptions — which are extensive — Israeli citizenship shall not be given to a resident of Judaea, Samaria or the Gaza Strip (the territories), nor shall a licence to live in Israel be given to such a person. The law does not apply to the residents of Israeli towns in the territories. On this occasion, we are concerned with the question whether the law satisfies — or does not satisfy — the constitutionality tests set out in the Basic Law: Human Dignity and Liberty.

2.    I have read carefully the opinion of my colleague, President Barak. The opinion is broad in scope and excellently presented, from beginning to end. I read it, but I was unable to agree. My path in the law is, in its essence, different from my colleague’s path. My thinking is different from my colleague’s thinking.

First of all, I believe that the State of Israel — like any country in the world — is entitled to restrict by law the immigration of foreigners into Israel, including the spouses of Israeli citizens. I do not accept that the citizens of the State have a constitutional right — i.e., a right by virtue of which it is possible to declare a statute of the Knesset void — that their foreign spouses may immigrate into Israel by virtue of marriage. Admittedly, I too, like my colleague the president, recognize the lofty status of the right to marriage and family life, but a disagreement divides us with regard to the secondary rights that derive from that right. Unlike my colleague, I doubt whether the right to marriage and family life implies a constitutional duty that is imposed on the state to allow foreign citizens who married citizens of the state to enter Israel.

Secondly, in times of war the state — any state — may refuse entry to citizens of an enemy of the state, even if they are married to citizens of the state. The State of Israel, as we all know, is at war — or at least a quasi-war — which is cruel and hard, against the Palestinian Authority and the terror organizations that act from within it. The residents of the Palestinian territories are de facto enemy nationals, and as such they are a group that presents a risk to the citizens and residents of Israel. The state is therefore entitled, in order to protect its citizens and residents, to enact a law that prohibits the entry of residents of the territories — enemy nationals — into the state, as long as the state of war or quasi-war continues. The basic right to marriage and family life is a basic right that we all recognize as a right derived from human dignity. But I doubt whether it implies, in itself, a duty imposed on the state to allow the entry into Israel of enemy nationals merely because they married persons who are residents or citizens of Israel. This is an enemy that is sponsoring a prolonged and murderous attack against the state and its residents. Here we will also find the answer to the claim of discrimination, since a distinction made by the law — a distinction that concerns the residents of the territories and not the citizens of the state — is a permitted distinction between the citizens of the state who married foreign citizens that are enemy nationals and citizens of the state who married foreign citizens that are not enemy nationals.

Third, even had I agreed with my colleague’s approach with regard to the constitutional status of the right to family life with persons who are foreign to the state, I still would not agree with his conclusion that the test of proportionality (‘in its narrow sense’) undermines the law and dooms it to destruction. Unlike my colleague, I am of the opinion that the advantage and benefit that the Citizenship and Entry into Israel Law contributes to the security and the lives of Israeli residents overrides the violation that the law inflicts on some of the citizens of Israel who have married — or who intend to marry — residents of the territories and who wish to live with their spouse in Israel. Indeed, when we place on one side of the scales the right of the citizens of Israel to life and security and on the other the right of some of the citizens of Israel to marry residents of the territories and live in Israel, the first side has greater weight. This should be the law where security is undermined to a significant degree, when life is in constant risk. And we all know that when we speak of risks to life and preserving life, we are not speaking metaphorically. It is life that we are seeking to protect, and no less. So when the Knesset — the supreme body in Israeli democracy — decided that the provisions of the Citizenship and Entry into Israel Law, a temporary law that is qualified with considerable restrictions, constitutes an effective and proper tool for protecting the lives of the citizens of the state and for the war against the serious risks to life and security, I find it difficult to accept that from the viewpoint of Israeli society the law commits the sin of disproportionality.

3.    The Citizenship and Entry into Israel Law is a law that was enacted against a difficult security background in which the State of Israel finds itself. Against this difficult background, since we know from past experience that some of the residents of the territories — residents who by virtue of their marriage were given Israeli citizenship, with permits to move freely within Israel and between the areas of the Palestinian Authority and Israel — aided the terror attacks of suicide bombers that plague Israel, our opinion is that the petitioners are not entitled to the voidance of the law. We should always remember: Israel is not Utopia. Israel finds itself in a difficult armed conflict with the Palestinians. An authority against a state. One collective against another. And this armed conflict has become like a war. Not like the War of Independence; not like the Six Day War; not like the Yom Kippur War. But it is a war nevertheless. And a state that finds itself in a state of war with another state usually prohibits — and is entitled to prohibit — the entry of the residents of the enemy state into its territory. This is also the case here. As to the relationship between the state and its residents and citizens, its internal relations, the state is entitled, in order to protect its citizens and its residents, to forbid the residents of the area that is waging an armed conflict with it — to forbid the residents of the ‘enemy state’ — to enter Israel.

4.    When it became clear that some of the residents of the territories who live in Israel were involved in the activity of suicide bombers who came from the Palestinian Authority, and when it became clear to the security establishment that they were unable to distinguish with a reasonable level of accuracy between the residents of the territories who are likely to aid terror and the residents of the territories who are not likely to aid terror, even if only for the reason that the terror organizations seek the help of those residents after they receive the coveted Israeli documentation, we are of the opinion that the arrangement provided by the Knesset in the Citizenship and Entry into Israel Law — a law whose validity is limited in time and whose application is qualified by reservations — according to which Palestinian residents from the territories, in the age groups stated in the law, will not be given citizenship or a licence to live in Israel, is a constitutional and proportionate law.

5.    We all know that the provisions of the law harm some of the citizens of Israel who wish to marry Palestinian spouses and live with them in Israel. As human beings, we can only identify with the pain of those innocent persons whose right to have a family life in Israel has been violated. But there are two sides to the coin. Thus, as long as the Palestinian-Israeli armed conflict continues, as long as the Palestinian terror continues to strike Israel and Israelis indiscriminately, as long as the security services find it difficult to distinguish between those who aid our enemies and those who do not aid our enemies, the right of the few to have a family life in Israel should yield to the right of all the residents of Israel to life and security. Indeed, it is the right — more, it is the duty — of a state, of every state, to protect its residents against those who wish to harm them, and from this it can be derived that the state may prevent the immigration of enemy nationals into it — even if they are merely the spouses of Israeli citizens — while it is waging an armed conflict with that enemy.

Concerning the armed struggle that the Palestinians are waging against Israel and Israelis

6.    In September 2000, a murderous terror onslaught began to afflict the State of Israel and its residents. Its origins were in the territories of Judaea, Samaria and the Gaza Strip. The onslaught is planned and executed almost entirely by Palestinians who are residents of the territories. The armed struggle of the Palestinians against the State of Israel and its residents has not stopped, and while we write this judgment the citizens of Israel continue to live under the threat of the murderous terror that is directed against them. We already know that we are speaking of one of the most serious onslaughts that we have undergone. Tens of thousands of terror attacks originating in the territories have struck children, the elderly, women and men indiscriminately and mercilessly. The vast majority of these are innocent citizens who are engaged in their normal day-to-day activities. This has led to the death of more than one thousand Israelis and the wounding of thousands more. Much property has been damaged and destroyed. The economy of the State of Israel has been seriously undermined. Daily life in the country has been disrupted. Many citizens have become fearful of everyday occurrences, such as travelling on buses, visiting shopping malls and eating out in restaurants. In the eyes of the world Israel is pictured as a country afflicted with terror that should not be visited.

7.    Let us briefly mention the facts that can be called ‘plain facts,’ but in truth they are stained and discoloured with much blood. Since September 2000 the Palestinian have carried out 26,448 terror attacks, in which they have murdered 1,080 Israeli citizens and wounded 7,416 citizens. The number of terror attacks includes all the terror attacks that were carried out in Israel and the territories, and it includes various types of enemy terror activity, such as huge explosions with many victims inside Israel, shooting attacks in the territories and the firing of Kassam rockets and light firearms into Israel. For our purpose, we will focus on the attacks that are carried out inside Israel, i.e., attacks whose execution usually requires the help of persons who live legally in Israel and are able to avoid obstacles that Israel places in the path of terrorists who come from the territories. Inside the State of Israel — literally in the home — the Palestinians have carried out 1,596 terror attacks, including 148 suicide attacks. 626 Israeli citizens were murdered near their homes, while they were sitting in restaurants, travelling on buses, shopping at malls or waiting to cross a pedestrian crossing with small children. 6,446 Israelis — men and women, children and the elderly — have been wounded, some with very serious injuries that will leave them scarred all their lives. In the suicide attacks alone the Palestinians have murdered 505 Israelis and wounded thousands. This is the reality in which we live. These are the results of the war that the Palestinians are waging against us. And at this time we do not know what tomorrow will bring.

8.    To protect the residents of the state, Israel is fighting terror to its utmost. But this war is not simple at all. It is also not like previous wars, those wars which shaped the norms of war accepted in international law. The Palestinian war of terror is not carried out by an organized army wearing uniforms, nor is it waged on the battlefield. This is a war of terrorists who do not wear a tag to distinguish themselves from the other inhabitants of the territories and who direct their attacks against civilians who are going about their daily lives. The terrorists hide and mingle among the Palestinian population so that it is impossible to know who is an innocent Palestinian resident, who is a terrorist and who is a Palestinian resident who is likely to aid terror. This hiding of the terror organizations among the civilian population is not a coincidence. The terrorists hide deliberately among the civilian population, and they sometimes make use of the innocent population as ‘human shields’ against the operations of the IDF. Moreover, the terrorists are given support and assistance by parts of the civilian population. Indeed, not only do the inhabitants of the territories do nothing to stop the terror, but many of them even support it and assist it. A large number of terrorists receive the encouragement and assistance of those around them and their families. Many regard the perpetration of acts of terror and aiding terror as a means of ensuring the future livelihood of the family. Others act because of threats, and they aid the terror organizations out of a fear that if they do not do so they or their families will disappear. The Palestinian Authority itself also does not do enough to subdue terror, and in several cases it has been found that the Palestinian Authority or persons who were members in its agencies aided acts of terror or took part in them directly. This support is, inter alia, a result of the extreme and rabid incitement that calls for acts of violence to be carried out against Israel and its residents. This incitement has continued for many years, and it is clear that it has penetrated all sectors of Palestinian society. This court has been called on in the past to consider the difficult and complex security reality in which we find ourselves. Let us cite remarks made by President Barak three and a half years ago (on 3 September 2002) in Ajuri v. IDF Commander in West Bank [1], at p. 358 {87}:

‘Israel’s fight is complex. The Palestinians use, inter alia, guided human bombs. These suicide bombers reach every place where Israelis are to be found (within the boundaries of the State of Israel and in the Jewish villages in Judaea and Samaria and the Gaza Strip). They sew destruction and spill blood in the cities and towns. Indeed, the forces fighting against Israel are terrorists; they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including in holy sites; they are supported by part of the civilian population, and by their families and relatives.’

In another case, the court considered the attitude prevailing in Palestinian society and the encouragement given by some of the Palestinian population to the war of the terror organizations against the State of Israel (CrimA 2131/03 Saadi v. State of Israel (unreported), per Justice Levy):

‘… It is sufficient to point to the large number of attacks that have been perpetrated and the many others that were prevented, and it is especially appropriate to point to the exultations and joy following the killing of Jews, and the “days of feasting” announced by the families of those who are declared to be “martyrs” after their families are told of the death of their sons. In my opinion, these are capable of clarifying to what extent the population of the territories occupied by Israel encourage the suicide bombers, and we can therefore understand the growing number of persons who are prepared to act as “live bombs.” In this situation, the need to search for deterrents in order to reduce the cycle of killing is an existential need that knows no parallel…’

Someone who has not seen a mother praising her son who killed himself as a ‘live bomb’ in order to murder Israelis — and who among us has not seen these scenes of horror on the television screen — has never seen anything surreal in his life. Such are the enemies of Israel.

9.    We received clear and explicit evidence of the prevailing attitude of the Palestinian public in the elections that took place in the Palestinian Authority on 25 January 2006. In these elections the Hamas organization won a majority of the seats in the Palestinian parliament, and as a result of this win it also formed the government of the Authority. I think that there is no need to expand on the nature of the Hamas organization that, already on 22 June 1989, seventeen years ago, was declared by the government of Israel to be a terror organization, in accordance with the definition of this term in the Prevention of Terror Ordinance, 5708-1948. Hamas is a murderous terror organization, one of the most extreme and dangerous of the terror organizations, whose declared and clear purpose is to fight a war of Jihad that will wipe Israel off the face of the earth. The beliefs of the Hamas organization can be learned from the organization’s charter, which gives clear expression to the ideology that governs it. This charter, which is the basic constitution of Hamas, reveals an extreme outlook that calls for an uncompromising war of Jihad against Israel and Zionism. The Hamas organization regards itself as a link in a holy war against the Zionist invasion, and it calls upon the whole Moslem nation, and especially the Palestinian people, to take a part in this war which will lead to the destruction of the State of Israel. The charter of the Hamas organization numbers many pages, and we will cite (from the translation which the state submitted for our study) only some of the main points in brief. At the beginning of the charter, there is the following quote that is attributed to Hassan Albana, the founder of the Moslem Brotherhood movement in Egypt:

‘Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.’

This is the beginning of the charter and this is the evil and cruel spirit that permeates it.

Further on, the Hamas charter states that ‘Palestine is land belonging to the Islamic Wakf,’ and in consequence of this ‘it is forbidden to relinquish it or any part of it or to concede it or any part of it.’ Since the Hamas organization rules out any solution that involves conceding Palestinian lands — i.e., rules out any solution that does not involve the destruction of the State of Israel — the charter states openly and expressly that the Hamas organization rules out any peaceful solution whatsoever, since a peaceful solution means a concession of holy Palestinian lands. Hamas believes that the one and only solution to the ‘theft of Palestine by the Jews’ is a solution of war: not merely any war, but a holy Islamic war that will wipe the State of Israel off the face of the earth. In this spirit, the Hamas organization calls upon Moslems in general and Palestinians in particular to join the ranks of the Jihad warriors (the Mujadeen) in their war on Israel, and it also calls upon Islamic religious scholars to disseminate the spirit of Jihad and nurture Islamic consciousness among the whole people (paras. 14 and 15 of the charter):

‘… The freeing [of Palestine] is a personal obligation on every Moslem wherever he is. It is [solely] on this basis that one should address the problem [of Palestine], and every Moslem should understand this well.

…

When the enemies steal a part of Moslem lands, the Jihad becomes a personal duty of every Moslem. With regard to dealing with the theft of Palestine by the Jews, there is no alternative to raising the banner of Jihad, something which requires the spreading of Moslem consciousness among the masses on a local, Arab and Moslem level, and there is no alternative to spreading the spirit of Jihad among the [Islamic] nation, fighting the enemies and joining the warriors of the Jihad [the Mujadeen].’

It should be stated that further on the charter levels against Israel and the Jews serious and fantastic anti-Semitic accusations, including the accusation that ‘they were behind the French Revolution, the Communist Revolution and most of the revolutions of which we have heard and of which we hear in various places’; it is the Jews who caused the First World War which was intended to destroy the Ottoman Caliphate; the Jews have set up secret organizations throughout the world and they control them; the Jews set up the United Nations — which replaced the League of Nations — in order that they might control the world; the Jews use money and resources in order to control the world and to ensure the foundation and existence of the State of Israel (para. 22 of the charter). Indeed, the Protocols of the Elders of Zion have worthy progeny.

10. These, then, are the beliefs of the Hamas organization, these are its purposes, and to our sorrow Hamas has acted and continue to act in order to realize its beliefs and purposes. Since it was founded, Hamas has fought a cruel and murderous war of terror against Israel and it strikes Israeli citizens without mercy. Hundreds have been killed and thousands have been wounded in suicide attacks inspired by the organization, and this modus operandi has spread to other Palestinian organizations and from them to Moslem organizations throughout the world. Much blood has been spilt, and Hamas continues on its path.

11. And yet, despite its extreme positions, Hamas has benefited and the Palestinian public elected it to lead them. The Palestinian public elected the Hamas organization to power, and as a result of this election Hamas has formed a government in the Palestinian Authority. Hamas members hold office as the prime minister and as ministers in the government, they control the Authority’s budget and they decide its policy. Members of the Hamas organization are the Authority’s spokesmen, they control the media and they implement their policy vis-à-vis the world and the State of Israel. The Hamas organization and the Palestinian Authority — at least the organs of government in the Palestinian Authority — have become one.

12. An armed conflict has been taking place between Israel and the Palestinians for many years. This conflict has reaped a heavy price on both sides, and we have seen the massive scale of the harm caused to Israel and its inhabitants. The Palestinian public plays an active part in the armed conflict. Among the Palestinian public there is enmity to Israel and Israelis. Large parts of the Palestinian public — including also persons who are members of the organs of the Palestinian Authority — support the armed struggle against Israel and actively participate in it. The terror organizations and their operatives are well placed in all parts of Palestinian society and they receive its assistance, at least by its silence and failure to prevent terror operations. The Palestinian public chose the Hamas terror organization to rule it, and we know what are the character and the beliefs of the party that controls the Palestinian Authority. All of these are facts that are not in dispute, and the conclusion that follows from them is that the Palestinian Authority is a political entity that is hostile to Israel. It follows from this that the residents of the territories — Judaea, Samaria and the Gaza Strip — are enemy nationals. Admittedly, between Israel and the Palestinian Authority there is a complex and intricate relationship which is not merely a relationship of war, and it is clear that many of the residents of the territories do not take part in terror and even denounce it. But we are concerned with the rule, and when we are speaking of the rule — in the Palestinian Authority and the Palestinian public — the picture that we obtain is a picture of hostility and enmity. The Palestinian Authority is hostile to Israel. From the places under its control, and with its knowledge — possibly even on its initiative and with its encouragement — an armed struggle is being waged against Israel and its residents, and human bombs from the territories sew death and destruction in Israel. The relationship of Israel and the Authority is similar to the relationship between states that are at war with one another.

The security background to the enactment of the Citizenship and Entry into Israel Law

13. The State of Israel and the security forces have done all they can to defeat the wave of terror that has overwhelmed the state, and they have adopted wide-ranging measures, some of which have led, regrettably and as an inevitable consequence, to harm to the Palestinian population. Thus, inter alia, military operations have been conducted, some on a large scale, in the territories under the control of the Palestinian Authority. These operations involved infantry, heavy weapons — tanks and armoured personnel carriers — helicopter gunships and airplanes. The army entered Palestinian towns and villages, engaged in fierce fighting there and arrested many suspects. The army imposed curfews and sieges in various areas and several cities in Judaea and Samaria. Roadblocks were set up on highways and roads in the territories. The State of Israel initiated a policy of targeted attacks — on the land and from the air — and in several cases it accidentally caused harm to the civilian population among whom the terrorists who were being targeted by the operation were hiding. Alongside these military operations, when it was found that they did not provide a satisfactory solution to the terror onslaught, the State of Israel began building the security fence, which was intended to be a physical barrier that would prevent terrorists from entering the State of Israel.

14. Almost all of the military activities of the State of Israel were attacked in the court, on the grounds that they harm citizens who are not involved in terror, but the opinion of the court was consistent and clear: it is the right of the State to protect itself and its residents against the terror onslaught, and this is true even at the price of the accidental and unintentional harm to a civilian population that does not wish to harm the State of Israel. The right to life and existence — the life and existence of the residents of Israel, the life and existence of the state — therefore overrode other important rights, and the voice of the court was heard loud and clear. See, for example, Beit Sourik Village Council v. Government of Israel [2]; Marabeh v. Prime Minister of Israel [5]; Marab v. IDF Commander in Judaea and Samaria [3]; Centre for Defence of the Individual v. IDF Commander in West Bank [4]; HCJ 8172/02 Ibrahim v. IDF Commander in West Bank [108]; HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [109]; HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [110]. Those cases admittedly concerned the activity of the state in an area held under belligerent occupation, and thus they were different from the case before us. At the same time, we can learn from those cases how to balance rights, which we are also required to do in this case, when on the one side there are rights of the individual and on the other said there is the duty of the state to prevent terror activities and to protect the lives of the residents of the state.

15. Notwithstanding all the activities and efforts of the state of Israel, the terror onslaught was not stopped, and whenever a method of reducing the ability of the terrorists to harm Israel was found, the terror organizations made great efforts to overcome that method. This is what happened after the building of the security fence. The terror organizations encountered a method of defence that they found difficult to overcome, and in order to avoid it they began to avail themselves of residents of the territories who had undergone processes of ‘family reunifications’ and were given permits to enter Israel and move around in it freely. ‘The Israeli identity cards that were given to residents of the territories [as a result of marriage to citizens or residents of Israel] allowed them free movement between the areas of the Authority and Israel, and made them the preferred group of terror organizations for carrying out hostile activity in general, and inside Israel in particular’ (explanatory notes to the draft Citizenship and Entry into Israel (Temporary Provision) Law (Amendment) 5765-2005, Hatzaot Hok (Draft Laws), 5765, at p. 624). Thus a new reality was created ‘in which there is increasing involvement in the conflict on the part of Palestinians who were originally residents of the territories and who have Israeli identity cards as a result of the process of family reunification with persons having Israeli citizenship or residency, and who abused their status in Israel for the sake of involvement in terror activity, including aiding the perpetration of suicide attacks’ (ibid.).

The law and the security reasons underlying it

16. The residents of the territories who have documents that permit them to stay in Israel have therefore become a target for recruitment by the terror organizations because of their ability to aid in the perpetration of terror attacks in Israel. And indeed, the security forces of Israel have found that the efforts of the terror organizations have borne fruit, and that the involvement of the residents of the territories carrying Israeli identity cards in terror activity has increased. We should further point out that on more than one occasion the terror organizations contacted a resident of the territories after he passed all the required checks — including a check of the lack of a security risk — and he received a permit to stay in Israel. In other words, when he received the permit, the resident of the territories had no connection whatsoever with the terror organizations and therefore the security establishment did not find that he presented a security danger, but after receiving the documentation the terror organizations recruited him into their ranks to aid in terror activity.

17. Against the background of this difficult security reality, the government of Israel decided, on 12 May 2002, to determine a general policy with regard to the ‘treatment of illegal aliens and the policy of family reunifications with regard to the residents of the Palestinian Authority and foreigners of Palestinian origin’ (decision no. 1813). The government set out rules and principles for that new policy, adding that until a new policy was formulated, no residents of the territories would be entitled to documentation that allowed them to stay in Israel, including licences to live in Israel by virtue of the Entry into Israel Law, 5712-1952. In the language of the decision: ‘No new applications of residents of the Palestinian Authority to receive a status of resident or any other status will be accepted; an application that has been filed will not be approved, and the foreign spouse will be required to stay outside Israel until the decision is made.’

18. The government’s decision and the policy that the decision was intended to put into effect were enshrined in the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003. This is the law whose constitutionality (after its amendment) is the subject of the case before us. The law restricted, subject to certain exceptions, the right of residents of the territories to receive Israeli documentation that will permit them to stay in Israel, and according to section 2:

‘Restriction on citizenship and residency in Israel

2.  As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.’

19. As we have explained above, the reasons for this law are security ones, and we are also told this in the explanatory notes to the draft Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (Hatzaot Hok (Draft Laws), 5763, at p. 482):

‘Since the armed conflict broke out between Israel and the Palestinians, which led inter alia to dozens of suicide attacks being carried out in Israel, a trend can be seen of an increasing involvement in this conflict on the part of Palestinians who were originally residents of the territories who carry an Israeli identity card as a result of family reunifications with persons with Israeli citizenship or residency, by means of an abuse of their status in Israel that allows them freedom of movement between the areas of the Palestinian Authority and Israel.

Therefore, and in accordance with decision no. 1813 of the government… it is proposed to restrict the possibility of giving residents of the territories citizenship under the Citizenship Law, including by way of family reunifications, and the possibility of giving the aforesaid residents licences to live in Israel under the Entry into Israel Law or permits to stay in Israel under the security legislation in the territories.’

At the same time, on the basis of the assumption that the security reasons that led to the enactment of the law may change as time passes, it was decided that the law would be enacted in the format of a ‘temporary provision’ for a year, and that at the end of that year, after the ramifications of the temporary provision and the security position were examined, the government would be entitled, with the approval of the Knesset, to extend the validity of the law for an additional period that would not exceed an additional year, and so on. See Hatzaot Hok (Draft Laws), 5763, at p. 483. According to the wording of s. 5 of the law (as it was at the time of its enactment):

‘Validity

5.  This law shall remain valid until a year has passed from the date of its publication, but the government may, with the approval of the Knesset, extend its validity in an order, from time to time, for a period that shall not exceed one year each time.’

Extending the validity of the law and reducing its personal application

20. The law was enacted on 6 August 2003, and according to s. 5 it was valid until 5 August 2004. But the government exercised its power in s. 5 of the law, and with the approval of the Knesset it extended the validity of the law three times, for three short periods: once until 5 February 2005, a second time until 31 May 2005 and a third time until 31 August 2005. During this period, there was no change in the professional assessment of the security establishment that the terror organizations were doing their best to recruit to their ranks residents of the territories who held Israeli documentation by virtue of marriage to Israeli citizens. Moreover, it was found that the temporary provisions served the purpose for which it was intended, and that it was an effective tool in reducing terror and preventing security risks to the residents of the state. At the same time, the government considered the remarks that were made by the court within the framework of the hearings in petitions filed against the constitutionality of the law, namely that it should address the violation caused by the law to the rights of Israeli citizens who married residents of the territories, and that it should consider whether it was possible to balance the security purpose and the violation of those rights in a more lenient manner.

21. The government addressed the security considerations, the danger to public security and the violation of the rights of citizens, and after it weighed the conflicting interests against one another, it decided to recommend to the Knesset that it extend the validity of the law, and at the same time amend it in two respects: one, by broadening the group that might be entitled to licences to live in Israel, and two, by giving the Minister of the Interior discretion to give a permit to stay in Israel to groups that according to the security forces posed a (relatively) smaller potential security risk. This broadening of the exceptions to the law, so the government thought, would give a proper expression to the considerations of proportionality provided in statute and in case law, and it would therefore reduce the violation caused by the law to Israelis citizens without significantly prejudicing the security purpose. In the government’s opinion, the amendment of the law will lead to a reduction of approximately a third of the number of cases to which the law originally applied. We can see the reasons that formed a basis for the amendment and the nature of the amendment from the explanatory notes to the Citizenship and Entry into Israel (Temporary Provision) Law (Amendment) 5765-2005 (Hatzaot Hok (Draft Laws) 5765, at p. 624):

‘The professional position of the security establishment is that there has been no change in the security reality that was the basis for the enactment of the temporary provision, in so far as concerns the intention of the terror organizations to carry out major attacks, as much as possible, inside the State of Israel, and in so far as concerns the potential for exploiting the aforesaid population in carrying out these attacks, and even now attempts to carry out such attacks are continuing all the time.

It was also found that as the building of the separation fence progressed, members of the Palestinian population that hold an Israeli identity card became a higher priority for the terror organizations as aforesaid.

… The professional assessment of the security establishment is that the temporary provision is an effective tool for reducing the free passage of residents of the territories between the areas controlled by the Authority and Israel, and for preventing the potential for a serious security risk on the part of that population.

It is therefore proposed that the validity of the temporary provision should be extended for an additional period.

Notwithstanding, in accordance with decision no. 2265 of the government… and in view of the remarks of the High Court of Justice in petitions that were filed with regard to the temporary provision [the petitions that are before us], it is proposed that alongside the extension of its validity, the temporary provision should be amended so that the exceptions to the application of the restrictions therein should be broadened. This broadening of the exceptions should be made with regard to population groups who, according to the assessment of the security authorities, are of a reduced security risk potential, so that the purpose of the temporary measure is achieved, on the one hand, and we ensure that this purpose is achieved in a more proportionate manner, on the other.’

22. The Knesset debated the draft law and finally the draft was formulated into an amendment of the law that was published in Reshumot on 1 August 2005. We will not expand upon all the amendments that were made to the law, but we will recall once again that notwithstanding the general prohibition provided in s. 2 of the law, the Minister of the Interior was authorized, at his discretion and subject to the fulfilment of certain conditions, to give approval for residents of the territories to live in Israel. Thus, for example, it was provided, inter alia, in s. 3 of the law that notwithstanding the prohibition provided in s. 2 of the law — the prohibition against granting a resident of the territories citizenship or a licence to live in Israel — the Minister of the Interior may, at his discretion, approve an application of a resident of the territories to be given a permit to stay in Israel, if the age of the applicant is over 35 for a man or over 25 for a woman, provided that it is done in order to prevent a separation of spouses who are legally in Israel. This more lenient approach was adopted after the security establishment found that the expected risks from these age groups were (relatively) low. It was also determined (in s. 3A) that in order to prevent the separation of a minor from his custodial parent who is lawfully in Israel, the prohibition in the law shall not apply to a minor of up to 14 years of age, and that with the approval of the Minister of the Interior and the military commander, the stay in Israel of a minor who is a resident of the territories and who is up to 14 years of age will be allowed, here too in order to prevent his separation from his custodial parent. It should be emphasized that the provisions of section 3A of the law only concern minors who are residents of the territories, were not born in Israel and wish to join their custodial parent who lives in Israel. A minor who was born in Israel to a citizen or resident of Israel is entitled to receive the status of his parent, according to the provisions of s. 4A(1) of the Citizenship Law, 5712-1952, and r. 12 of the Entry into Israel Regulations, 5734-1974. It was also provided — in s. 3B of the law — that the military commander may give a permit to stay in Israel (for our purposes, to a resident of the territories who is a parent of a minor) ‘for a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.’ At the same time, in order not to harm the main purpose of the law — the security purpose — it was provided expressly (in s. 3D) that notwithstanding the concessions added to the law, no approval would be given for the stay in Israel of a resident of the territories if the security establishment thinks that he or a member of his family may constitute a security risk to the state. Let us look at the current wording of the law — at the main changes and concessions made in the amendment — against the background of the general prohibition in s. 2 of the law:

‘Restriction on citizenship and residency in Israel

2.  As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.

Permit for spouses

3.  Notwithstanding the provisions of section 2, the Minister of the Interior may, at his discretion, approve an application of a resident of the area to receive a permit to stay in Israel from the area commander —

 

(1) with regard to a male resident of an area whose age exceeds 35 years — in order to prevent his separation from his spouse who lives lawfully in Israel;

 

(2) with regard to a female resident of an area whose age exceeds 25 years — in order to prevent her separation from her spouse who lives lawfully in Israel.

Permit for children

3A. Notwithstanding the provisions of section 2, the Minister of the Interior, at his discretion, may —

 

(1) give a minor under the age of 14 years, who is a resident of an area, a licence to live in Israel in order to prevent his separation from his custodial parent who lives lawfully in Israel;

 

(2) approve an application to obtain a permit to live in Israel from the area commander for a minor under the age of 14 years, who is a resident of the area, in order to prevent his separation from his custodial parent who lives lawfully in Israel, provided that such a permit shall not be extended if the minor does not live permanently in Israel.

Additional permits

3B. Notwithstanding the provisions of section 2, the area commander may give a permit to stay in Israel for the following purposes:

 

(1) medical treatment;

 

(2) work in Israel;

 

(3) a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.

Special
permit

3C. Notwithstanding the provisions of section 2, the Minister of the Interior may grant citizenship or give a licence to live in Israel to a resident of an area, and the area commander may give a resident of an area a permit to stay in Israel, if they are persuaded that the resident of the area identifies with the State of Israel and its goals and that he or a member of his family made a real contribution to promoting security, the economy or another important interest of the State, or that the granting of citizenship, giving the licence to live in Israel or giving the permit to stay in Israel, as applicable, are a special interest of the State; in this paragraph, ‘family member’ — spouse, parent, child.

Security impediment

3D. A permit to stay in Israel shall not be given to a resident of an area under section 3, 3A(2), 3B(2) and (3) and 4(2), if the Minister of the Interior or the area commander, as applicable, determines, in accordance with an opinion from the competent security authorities, that the resident of the area or his family member are likely to constitute a security risk to the State of Israel; in this section, ‘family member’ — spouse, parent, child, brother, sister and their spouses.

The law therefore restricted itself to the residents of the territories aged between 14 and 35 for men and between 14 and 25 for women. The meaning of this is — so the explanatory notes to the draft law state (ibid., at p. 625) — that ‘adding the proposed qualifications… can restore approximately 28.5% of all the applications for family reunifications to the list of those applications that can be processed…’. The law also restricted (in s. 3A) the harm to the children of Israeli citizens and residents, by making it possible for minors who are residents of the territories to be reunited with the custodial parent who lives in Israel. Nonetheless, the foreign parent, who is a resident of the territories, is neither able nor entitled to receive a status by virtue of his being a parent of a child who lives in Israel. It is also provided, in the spirit of proportionality, that the law will remain valid until the second of Nissan, 5766 (31 March 2006), but the government may, with the approval of the Knesset, extend its validity in an order, for a period that shall not exceed one year each time (s. 5).

The Citizenship and Entry into Israel Law — interim summary

23. This, then, is the law that the Knesset enacted, and its purpose is to restrict the ability of Palestinians who are residents of the territories to come to live inside Israel as long as the armed conflict continues between the State of Israel and the Palestinian Authority and its inhabitants. The law, we should emphasize, does not speak of Israeli citizens and it does not address the rights of Israeli citizens. At the same time, there is no doubt that the law directly affects the rights and status of all citizens of Israel; some citizens whose spouses are residents of the territories cannot live with their Palestinian family members in Israel, whereas all the residents of Israel enjoy, presumably, a reduction in terror.

24. Everyone will agree that the purpose of the law is a security purpose, a purpose of protecting the lives and security of the residents of Israel — all the residents of Israel — against Palestinian terror. The background to the enactment of the law is also clear. An armed struggle is taking place between Israel and the Palestinian entity in which the Palestinian public is playing an active role. Some of the inhabitants of the territories who received permits to stay in Israel by virtue of their marriage to citizens or residents of Israel aided acts of terror in Israel. The security establishment is of the opinion that they cannot distinguish between an inhabitant of the territories who regards himself as belonging to the terror organizations and his neighbour who does not regard himself as belonging to the terror organizations. The terror organizations are making efforts to recruit persons who have already passed the security checks and have received permits to stay in Israel. An additional investment of resources cannot prevent the security risks to the residents of the state. Therefore, in order to protect the lives and security of the residents of the state, it was decided not to give permits to stay in Israel to anyone who is included in the population groups that past experience has shown to constitute a high risk (relatively speaking) of becoming involved in terror. At the same time, it became possible to give permits to stay in Israel to those groups that are not regarded as dangerous (relatively speaking).

25. The prohibition in the law is a prohibition that is limited in time and by several qualifications, and its purpose is to provide a solution to specific security risks that were revealed within the framework of the armed struggle that the Palestinians are conducting against Israel. The professional assessment of the security establishment with regard to the security risks has not changed, and they have also found that the law is an effective tool for reducing those risks. The government and the Knesset addressed the violation that the law causes to some citizens of the state who wish to live in Israel with their Palestinian family members, but they thought that in the prevailing security reality this violation was a necessity. Nonetheless, the government and the Knesset — at their discretion — acted in order to reduce the violation caused by the law. The government and the Knesset therefore reached a formula that balances, in their opinion, the various considerations in a proportionate manner, and this led to the format of the law.

A synopsis of the arguments of the petitioners and our brief response

26. The following is a synopsis of the petitioners’ arguments: the Citizenship and Entry into Israel Law violates the right to marriage and family life of Israeli citizens, men and women, who have married residents of the territories, since it prevents them from having a proper family life in Israel. If this is not enough, the violation of these rights of Israeli citizens is tainted also with inequality, since it mainly concerns Arab Israelis who marry persons from the territories. Both the violation of family life and the violation of equality each amount to a violation of the dignity of Arab Israeli citizens who are married to residents of the territories, and it follows that they are contrary to the value of human dignity in the Basic Law: Human Dignity and Liberty. As to the criteria in the limitations clause, the petitioners’ claim is that the violations are not intended for a proper purpose, and in this respect they hint that the security purpose argued by the state was only intended for the purposes of legal argument, whereas the real purpose of the law is the demographic purpose. The petitioners also claim that the violation of their rights is not proportionate — in all aspects of the requirement of proportionality — since it seriously harms thousands of citizens whereas in practice only several dozen cases have been uncovered in which residents of the territories who received Israeli documentation aided terror.

27. We do not accept the petitioners’ claims, with regard to the content and scope of the violated right, the purpose of the law and the proportionality of the violation. Our brief and simple response is that as long as an armed conflict — a state of quasi-war — continues between Israel and the Palestinians, as long as Palestinian terror continues to strike Israel and murder Israelis, the state does not have any legal duty (to its citizens) to allow residents of the territories who married citizens of the state to enter and stay in Israel. The residents of the territories are enemy nationals. Their loyalty is to the Palestinian side. There are many ties that bind them to the Palestinian Authority. And in a time of war, they are presumed to be a risk group to Israel and its citizens. We agree, of course, that not all the residents of the territories wish to harm the State of Israel, but the general trend, the prevailing wind, is directed by the leadership, and its philosophy is that the name of Israel should be obliterated from among the nations. If this does not suffice, then in view of the fact that it is not possible to distinguish between those persons who constitute a security risk to the residents of the state and those who do not, I find it difficult to understand how the state can be rendered liable to take a risk and permit the entry into Israel of the former together with the latter.

Immigration into Israel — in general and as a result of marriage and family reunification

28. Let us first consider the question of the right to marriage and to have a family life in Israel, where we are speaking of a marriage between someone who is an Israeli citizen and someone who is not an Israeli citizen. We shall first address this issue on the level of ordinary legislation and afterwards discuss it on the level of the Basic Laws. We are not speaking of the right to marriage and have a family life between spouses who are both Israeli citizens.

29. The law in Israel is that someone who is not an Israeli citizen or an immigrant under the Law of Return does not have a right to enter Israel or to live here unless he receives a permit from the authorities. As it has been said elsewhere: ‘A person who is not an Israeli citizen or an immigrant under the Law of Return does not have a right to enter Israel or a right to stay in it without permission’ (HCJ 482/71 Clark v. Minister of Interior [111], at p. 117). This is the law concerning an unmarried foreigner and this is the law concerning a foreigner who is married to an Israeli citizen. The starting point for the interpretive voyage is therefore this: that the law of the state does not give the foreign spouse of an Israeli citizen a right to enter Israel, to live in it permanently or to become a citizen of the state by virtue of marriage. It is admittedly true that Israel recognizes – in principle — the right of the individual to marry and to have a family life. It follows from this that the state will permit — in general — the foreign spouses of Israeli citizens to enter and live in Israel, and thus it will enable Israeli citizens to realize their right to marry and to establish a family in Israel. At the same time, notwithstanding the recognition of the right to marry and to family life, the state has refused to grant the individual a constitutional and express right to ‘family reunification’ in Israel. Moreover, where there is a concern of harm to public interests, which include a concern as to security risks, the entry of the foreign family member into Israel will not be allowed, whatever his family status. We extensively discussed all of this and more in Stamka v. Minister of Interior [24], at p. 787:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family unifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family unifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice.’

 We should note and emphasize: the recognition that it is right and proper to give protection to the family unit is subject to ‘qualifications of national security, public safety and public welfare.’ These qualifications are required by the very nature of the subject under discussion, but since they were stated, we saw fit to mention them. All of this is relevant to the claim concerning the duty of the state not to prevent the individual from establishing and maintaining in Israel a family unit as he chooses.

With regard to the right — or absence of a right — of a foreign spouse to enter and stay in Israel, see also HCJ 754/83 Rankin v. Minister of Interior [112], at p. 116; HCJ 4156/01 Dimitrov v. Minister of Interior [113], at p. 293; HCJ 2527/03 Assid v. Minister of Interior [114], at p. 143; cf. also cases concerning children and parents: HCJ 758/88 Kendall v. Minister of Interior [115]; HCJ 1689/94 Harari v. Minister of Interior [116]; HCJ 9778/04 Alwan v. State of Israel [117]; Dimitrov v. Minister of Interior [113], at p. 293.

30. The decision of the legislature not to give a right of entry and residence in Israel, even to the foreign family members of Israeli citizens, was a deliberate choice — a choice made with considered purpose. Thus, for example, we find that in the early days of the state, a possibility was considered of stating in the law that a foreign national who married an Israeli citizen would become an Israeli by virtue of marriage (s. 6 of the draft Citizenship Law, 5712-1951; Hatzaot Hok (Draft Laws) 5712, at p. 22). This proposal was rejected. By contrast, where the legislature wanted to give a foreign national or members of his family a right to immigrate to Israel, the legislature knew how to do so expressly. This is the effect of the Law of Return, 5710-1950, which gives every Jew, as such, and his family members, a right to immigrate to Israel, and in consequence to be given Israeli citizenship. This right that was given to the family members of a Jew who is entitled to immigrate to Israel was not given to the spouses of local residents, whether Jews or non-Jews. Their cases were made subject to the discretion of the Minister of the Interior, and they are subject to the same law as all other foreign nationals. See and cf. Stamka v. Minister of Interior [24], at pp. 757-760. The entry and stay in Israel of foreign spouses who married Israeli citizens is therefore subject to the discretion of the Minister of the Interior, according to the policy that he has formulated and subject to statute and the rules of administrative law. See Kendall v. Minister of Interior [115]; HCJ 282/88 Awad v. Prime Minister [118], at p. 434; HCJ 100/85 Ben-Israel v. State of Israel [119], at p. 47; cf. HCJ 740/87 Bentley v. Minister of Interior [120], at p. 444. If this is the case with regard to entering and staying in Israel, it is certainly the case that the foreign spouse does not have a right to Israeli citizenship by virtue of marriage. Admittedly, the foreign spouses of Israeli citizens have been accorded a certain degree of leniency in terms of the conditions that allow them to become Israeli citizens — see s. 7 of the Citizenship Law, 5712-1952 — but everyone agrees that the spouses do not have a substantive right to receive citizenship. As stated in Stamka v. Minister of Interior [24], at p. 766:

‘A foreigner who marries an Israeli citizen does not acquire — by virtue of his marriage — a right to become a citizen, and the Minister of the Interior has the power to grant or not to grant the application for citizenship submitted to him by that foreign spouse.’

See also Rankin v. Minister of Interior [112], at p. 116; Dimitrov v. Minister of Interior [113], at pp. 292-293.

31. Marriage to an Israeli citizen does not, therefore, automatically grant a right to the foreign spouse to be an Israeli citizen. The Minister of the Interior has the power to decide whether to grant the citizenship application of the foreign spouse of an Israeli citizen, and no one will argue that the foreign spouse, as well as the Israeli spouse, has a right that the Minister of the Interior should grant his application. Even the leniency to which the foreign spouse is treated in accordance with s. 7 of the Citizenship Law does not derogate from the power of the Minister of the Interior — from his power and his duty — to consider whether to grant the citizenship application or to refuse it. Moreover, s. 7 of the Citizenship Law also does not restrict the scope of the discretion of the Minister of the Interior, and it has been held in the past that, notwithstanding this provision, the Minister of the Interior is authorized to determine a policy that will make the granting of the foreign spouse’s application for citizenship conditional on the fulfilment of some of the conditions provided in s. 5(a) of the law. See HCJ 576/97 Scharf v. Minister of the Interior [121].

32. We should also mention in this context that it is a case law rule that a foreigner is not entitled to receive a status in Israel by virtue of his minor child, if he does not request in the same breath to be part of a family unit in Israel with the Israeli spouse. The court held in those cases that, notwithstanding the strength of the connection between parents and their children, a parent does not have a right to ‘family reunification’ with his child in Israel merely because he is a parent, if he is not a part of a family unit with the Israeli spouse. The following was stated by President Barak in Dimitrov v. Minister of Interior [113], at p. 294:

‘… The petitioner does not base his claim for the status of a permanent resident on the bond of marriage. His claim is that he is entitled to this right because of his minor daughter, who is an Israeli citizen. Even though the three-member family unit has broken up, his relationship with his daughter is a good and warm one, and he wants this relationship not to be harmed. Is this a valid argument?

The respondent’s position is that only in exceptional cases, in which there are extraordinary humanitarian circumstances, does the fact that a foreigner is the parent of a minor who is an Israeli citizen justify his being given a status of a permanent resident (see Harari v. Minister of Interior [116]). In the respondent’s opinion, these special circumstances do not exist in the case before us. Notwithstanding, the respondent is prepared to allow the petitioner, if he so wishes, “generous” visiting visas in order that he may visit his daughter from time to time. Is this consideration lawful? In my opinion, the answer is yes. Already in Kendall v. Minister of Interior [115] it was held that “the place of a minor is with his parents. Where they live, there he should live, and not vice versa. A minor is dependent on his parents, and parents are not dependent on him” (ibid., at p. 518). Therefore, in principle, the citizenship of the daughter is insufficient to grant a status of a permanent resident to her foreign parent, but there may of course be humanitarian cases that will require a departure from this principle. I am satisfied that in the case before us these special circumstances do not exist.’

This case law rule that was made with regard to parents of minors who live in Israel is stricter than the rule made with regard to spouses. Indeed, in both cases the foreign spouse (in the one case) or parent (in the other case) does not have a recognized right to enter Israel by virtue of their family connections in Israel. At the same time, whereas with regard to spouses a policy allowing the foreign spouse, as a rule, to enter Israel has been approved — subject to criminal and security checks — in the case of a foreign parent a policy was adopted that does not allow (subject to exceptional humanitarian cases) the parent to receive any status in Israel. See also Kendall v. Minister of Interior [115], at p. 518; HCJFH 8916/02 Dimitrov v. Minister of Interior [122]; Alwan v. State of Israel [117]; HCJ 6708/04 Badar v. Minister of Interior [123]; HCJ 8986/04 Riash v. Minister of Interior [124]; HCJ 8030/03 Samuilov v. Minister of Interior [125]. With regard to family reunifications between parents and foreign children who are not minors, see Harari v. Minister of Interior [116]; HCJ 3403/97 Ankin v. Minister of Interior [126].

33. A summary of what has been said up to this point is therefore that the law in Israel does not give the foreign (non-Jewish) spouse of an Israeli citizen, nor a parent of a minor living in Israel, a right to enter Israel, to live in Israel or to be an Israel citizen. The power to permit entry into Israel or residency in Israel, or to grant Israeli citizenship, is held by the state authorities, and these should act in accordance with their power and their discretion, in accordance with the laws of the state and subject to principles and doctrines that prevail in administrative law. The case law of the Supreme Court is one of these. Indeed, on several occasions the court has ordered the state authorities to grant an application that was submitted to it with regard to entering Israel or receiving a permit to live in Israel, but in all these cases no one cast any doubt on the provisions of the law, and the intervention of the court was restricted to the discretion of the competent authority. Against this background, the provisions of the Citizenship and Entry into Israel Law should be understood and analyzed. This law informs us that, notwithstanding powers that were given to the Minister of the Interior, first in the Citizenship Law, with regard to citizenship, and again in the Entry into Israel Law, with regard to entry into Israel and living in it, the minister does not have power to grant residents of the territories citizenship nor does he have power to allow them to live in Israel. The law therefore does not rule out an express legal right that is given to Israeli citizens or their foreign spouses. All it does is to reduce the powers of the Minister of the Interior under the Citizenship Law and under the Entry into Israel Law. The two are not the same. The question that should now be asked is whether the legislature was permitted in this way to reduce the scope of the discretion of the Minister of the Interior? This question, as phrased above, raises us to the level of the Basic Laws, and we will address the Basic Laws below.

Immigration by virtue of marriage and establishing a family — the constitutional right — general

34. The Israeli legislature did not give Israeli citizens a right in statute that their foreign family members may enter Israel, live in it and become Israeli citizens. But have Israeli citizens acquired this right from another source, namely the value of human dignity in the Basic Law: Human Dignity and Liberty? The petitioners’ argument, in brief and in general, is that the right of the individual to marriage and family life derives from the value of human dignity in the Basic Law, and in consequence of this the state has a duty to permit the foreign family members of an Israeli citizen to live with him in Israel. Moreover they also claim that the provision of the law concerning ‘residents of the territories’ is a provision that discriminates against the Arab citizens of the state and it violates equality between the citizens of the state, since only Arab citizens (except in a handful of cases) marry residents of the territories. Since the duty of treating the citizens of the state with equality is also derived from human dignity, it follows that the provision of the law that relates solely to residents of the territories also seriously violates human dignity. This implies that the law, which relates only to ‘residents of the territories,’ is afflicted by two maladies that seriously violate human dignity: first, it violates the right of Israeli citizens to family life, and second, it violates equality between Israeli citizens. The conclusion that follows from all of the above is, according to the petitioners’ argument, that the law should be declared void because it seriously undermines the Basic Law: Human Dignity and Liberty.

35. The arguments of the petitioners are weighty arguments. They are arguments that come from the depths of the hearts of Arab citizens of the state who married residents of the territories and wish to live with their spouses in Israel. Let us translate these arguments into our language, the language of the law, and the question that presents itself to us in all of its force is this: does the state have a duty under the Basic Law: Human Dignity and Liberty — or, to be more precise, by virtue of the value of human dignity in the Basic Law — to allow the foreign spouses of Israeli citizens, whether Jewish or non-Jewish, to immigrate into Israel, to establish their permanent place of residence in Israel. Note that we are not talking of the limitations clause and the balances required by the conflict between human dignity and interests that conflict with it. We are speaking now of the scope of human dignity in the Basic Law: Human Dignity and Liberty in principle. Alternatively, even if we say that the value of human dignity gives an Israeli citizen a right that his foreign spouse can make his permanent home in Israel, an additional question is whether he retains this right even in times of war and armed conflict, or whether this right of the citizen is limited by the power of the state not to allow ‘enemy nationals’ to enter Israel and live here permanently. Here too, we should emphasize, we are speaking of the scope of the right to dignity in principle.

36. This question concerning the scope of human dignity in its aspect of the right to marry and to have a regular family life in Israel can be divided into two sub-questions, that should be asked sequentially: the first sub-question is whether the right to marry and to have a regular family life falls within the scope of human dignity within the meaning thereof in the Basic Law: Human Dignity and Liberty. If the answer to this sub-question is no, the matter ends and there is no need to ask the second sub-question. But if the answer to the first sub-question is yes, then we must ask the second sub-question, which is whether the concept of human dignity implies not only a right to marry and to have a regular family life but also an inherent right of an Israeli citizen not merely to marry a foreign spouse but in addition to establish the permanent residence of the couple specifically in Israel. In this context, the question also arises as to whether a minor, who is a citizen or a resident and lives in Israel with his Israeli parent, has an inherent right that a status is given in Israel also to his foreign parent. At a later stage, we will also ask whether the value of human dignity gives an Israeli citizen who married a resident of an entity that is at war with Israel a right to live with his Israeli spouse, and similarly whether it gives a minor, who lives in Israel with his Israeli parent, a right to bring to Israel his foreign parent who is a resident of an entity that is at war with Israel. Let us consider these questions separately, in order, but first we should make a few remarks on the limits of the scope of basic rights — constitutional rights — in Israeli law, including establishing the boundaries of rights that derive from the value of human dignity in the Basic Law: Human Dignity and Liberty.

On determining the scope of basic rights and rights deriving therefrom

37. Determining the scope of application of the basic rights and the relationship between the basic rights inter se and between them and other interests that seek to limit them from within or to restrict them from without, by applying the limitations clause, is not an easy task at all. My colleague President Barak argues for extending the scope of the basic rights, since he thinks that the place for restricting those rights is in the limitations clause (see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at p. 385). Thereby, of course, my colleague reduces the scope of the power of the legislature. Personally, I am not at all sure that public interests that seek to limit, detract from or violate basic rights should always — or even usually — find their place only in the limitations clause as opposed to the determination of the scope of the basic right in principle.

38. First of all, before we consider the relationship and balance between rights and interests, we ought to be aware that a determination that a certain right is a constitutional right means that it is a right that derives its force and strength from the Basic Law: Human Dignity and Liberty. The concept of a constitutional right tells us that it is a right superior to statute, a right that the legislature — as a legislator — does not have the right and power to violate other than in accordance with an exception that was permitted in the constitution itself, which in Israel should be in the Basic Law itself. For this purpose, there is no need to consider the question whether all the Basic Laws are really a constitution. It is sufficient for our purposes that everyone agrees that the rights in the Basic Law before us, the Basic Law: Human Dignity and Liberty, have been substantially entrenched against the intervention of the Knesset. See United Mizrahi Bank Ltd v. Migdal Cooperative Village [7]. Thus, when we decide that a certain right has taken on the form of a constitutional right — or of a basic right — it is as if we are saying to the legislature: take care and keep away. This sphere is a constitutional sphere. So when we extend the scope of the basic rights — as my colleague the president wishes to do — we necessarily restrict the scope of the legislature’s power and we prevent it, subject to the conditions set out in the limitations clause, from enacting laws that violate the arrangement provided in the constitution in that sphere. Is it right that we should restrict the power of the legislature in this way? In this respect, we should distinguish some rights from others. Indeed, there are rights and values — universal rights and values — by which the power of the legislature should be restricted. Such, for example, are the values of equality and personal liberty. But an excessive expansion of the basic meaning of the rights, and applying constitutional protection to all the derivative rights, means a restriction of the power of the Knesset that was elected to enact laws. Thus, the more we extend the scope of the basic laws, the more we restrict the power of the Knesset to enact laws. Justice Zamir rightly pointed out that:

‘The Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation were not intended to make the statutes of the Knesset easy prey for anyone who was not pleased by a statute. A statute of the Knesset retains its position of dignity: the statute still reflects the will of the sovereign, which is the people, and therefore the statute is what leads the people, including the court… human dignity should not replace the dignity of statute’ (Local Government Centre v. Knesset [31], at p. 496).

See also Hoffnung v. Knesset Speaker [77], at pp. 67-68, and the disagreements that arose in Silgado v. State of Israel [107].

39. Admittedly, in countries where there is a formal constitution the constitutive authority is entitled and authorized to include in the constitution specific arrangements that grant rights that in general we will find it difficult to call ‘basic rights.’ These constitutional arrangements do not concern universal basic values — values that everyone agrees ought to override an ordinary statute — and their purpose is to regulate life in the country in a specific manner, according to its special (and changing) needs. The normative status of these constitutional arrangements is the same as that of all other constitutional arrangements: the law of the state will be overridden by them and the power of the legislature will not stand up against them. At the same time — and for this reason that they do not reflect universal basic values — those arrangements may be cancelled or changed when times change and the needs of the state change. We can illustrate our remarks by means of two of the arrangements in the United States constitution: one is the constitutional prohibition introduced in 1919 (in the Eighteenth Amendment to the Constitution) against the manufacture, sale, or transportation of intoxicating liquors within the territory of the United States (known as ‘Prohibition’). It is doubtful whether this prohibition reflected universal basic values; it was perhaps correct and desirable in its time, but when the need ceased, the prohibition was also repealed (in 1933, in the Twenty-First Amendment to the Constitution). The other arrangement is found in the constitutional right of the individual to bear arms (the Second Amendment to the Constitution in 1791). This arrangement has its origin in years past, when the young state required an armed militia to ensure its independence. This constitutional arrangement is a specific and unique arrangement, and it is doubtful whether there is a similar arrangement in the constitutions of other countries of the world. On the contrary, most countries — including Israel — actually forbid their citizens to bear arms. See and cf. United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 516.

Until now we have spoken of formal constitutions and countries where they have established formal constitutions. Now we turn to countries — such as Israel — where there is no formal and detailed constitution. In such countries, the basic rights of the individual are derived from the basic values themselves, and naturally they are restricted to basic values and do not extend to specific arrangements that are not universal, but might find their way into formal constitutions. In other words, where there is no formal constitution, the court, which is the competent organ for reviewing the constitutionality of statutes, has only the basic values themselves to rely upon, and it does not have power to ‘establish’ specific arrangements, i.e., to give arrangements that do not reflect universal basic rights a normative status of a constitution. In Israel, we have not had the fortune to have a constitutive authority establish for us constitutional arrangements, and although some basic rights have been given a special normative status in the Basic Laws, it is doubtful whether we are competent to derive from those rights — and in our case, from the right to human dignity — specific rights that will also enjoy the normative protection of the Basic Laws. The court does not have the power to give a normative status of a basic right — a right that enjoys the normative protection of a Basic Law — to specific rights which by their very nature do not have a normative status of a ‘constitution,’ unless the constitutive authority in the state included them expressly in the constitution of the state.

40. We are now concerned with the interpretation of the concept of human dignity in the Basic Law: Human Dignity and Liberty — with the interpretation of the concept and determining its scope of application. The constitution of the state — for our current purposes, human dignity in the Basic Law: Human Dignity and Liberty — constitutes a fundamental norm for coexistence in Israel of its citizens and residents. A necessary conclusion is that in determining the scope of a basic right, we must survey our environment panoramically, and when determining the boundaries of a basic right it is our obligation to take note not merely of the individual who has rights but, at least, of his close environment and the social and other ramifications that are implied by giving the right a greater or lesser scope. Indeed, a basic right — every basic right — does not exist in a vacuum. The basic rights exist within a human society, among human beings, and are supposed to express the recognition of human dignity, the autonomy of free will, the freedom of a person to shape his life as he wishes in the society in which he lives. Man is a social creature, and his existence, development and advancement are all dependent on the existence of a human society in which there is a minimum of order, security and safety. A basic right affects its surroundings and is affected by its surroundings. Determining the scope of its application is a function of its internal strength and those wide-ranging influences. It would not be right, in my opinion, to channel the question of those influences merely into the limitations clause and the issue of the violation of the basic right. There are strong forces that are capable of affecting the determination of the boundaries of the basic right in principle, and every interest ought to find its proper place.

41. Stretching basic rights in every direction — up, down and to the sides — while referring the interests that are capable of affecting their boundaries to the limitations clause is likely to have a detrimental effect on constitutional debate, and this is likely to lead eventually to a reduction in the constitutional protection of human rights. But we seek to create a balanced and proper constitutional process that is intended to prevent contempt for the constitutional debate. This was discussed by Justice Zamir in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 470-471, when he considered the question of the scope of property rights:

‘… I want to be very careful not to make rigid determinations on the question of what is property and what is a violation of property. Does the Basic Law give protection against any new law that adversely affects, even indirectly, the value of the property or pecuniary income? For example, does the protection of property extend also to restrictions that the law imposes on employment contracts, such as a provision concerning a minimum wage, or to requirements in property relations between spouses, such as a provision concerning a liability for maintenance? If everything that adversely affects the value of a person’s property, including any kind of pecuniary liability, is a violation of property rights, it will be found that the laws that violate property rights are innumerable; the court may founder in its efforts to examine the constitutionality of every such law, in case, inter alia, it violates property rights excessively; and the legislature will find it difficult to carry out its role properly. The more the scope of property rights as a constitutional right is widened, so it is to be feared that the strength of the protection of those rights will be weakened. Of such a case it may be said: the higher you aim, the lower you fall.’

See also the remarks made by Prof. Hogg, as cited by President Shamgar in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 330 (the emphases were supplied by President Shamgar):

‘The reason that generosity should give way, rather than the stringent standard of justification, concerns the policy-making role of the courts. If the scope of the guaranteed right is wide, and the standard of justification is relaxed, then a large number of Charter challenges will come before the courts and will fall to be determined under section 1. Since section 1 requires that the policy of the legislation be balanced against the policy of the Charter, and since it is difficult to devise meaningful standards to constrain the balancing process, judicial review will become even more pervasive, even more policy-laden, and even more unpredictable than it is now. While some judges will welcome such extensive powers, most judges will be concerned to stem the wasteful floods of litigation, to limit the occasions when they have to review the policy choices of legislative bodies, and to introduce meaningful rules to the process of Charter review. These purposes can be accomplished only by restricting the scope of Charter rights’ (P.W. Hogg, ‘Interpreting the Charter of Rights: Generosity and Justification,’ 28 Osgoode Hall L.J. (1990) 817, at pp. 819-820).

42. The public interest — that interest that seeks to restrict or violate a basic right — is in fact a collection of interests, which are different in their nature and different in their strength, and it is not right and proper that we should speak of the public interest as if we are speaking of one composite interest. We must closely examine and inspect each strand of those interests that together make up the general public interest, and we should treat it according to its measure. See and cf. CFH 7325/95 Yediot Aharonot Ltd v. Kraus [127], at p. 78.

Interspersing the strands of the collective public interest — according to the strength of the relevant strand — between the task of determining the boundaries of a basic right and the limitations clause is consistent with the principle of the separation of powers and the decentralization of power, since it is capable of leading to a more comprehensive and careful scrutiny of legislation. We should recall the remarks uttered by this court only recently in Gaza Coast Local Council v. Knesset [6], at p. 553:

‘… When declaring a statute void because of unconstitutionality, we are concerned with the voidance of legislation enacted by a body that was elected by the people. This results in the approach that a clear and substantial violation of a constitutional human right is required in order for a statute to be unconstitutional (see Hoffnung v. Knesset Speaker [77], at p. 68); this leads to the approach that a “permanent” law is not the same as a “temporary” law when scrutinizing the constitutionality of the law (see Klal Insurance Co. Ltd v. Minister of Finance [64], at p. 486; Local Government Centre v. Knesset [31], at p. 494; HCJ 24/01 Ressler v. Knesset [128]). Indeed, with regard to the constitutional scrutiny “… the less, the better”.’

43. It follows that when we are about to scrutinize the scope of the application of a basic right, we are obliged to cast a glance from side to side, above and below. Concentrating our gaze on the individual tree, while ignoring the forest around it, is tantamount to ignoring reality. By protecting the individual tree we may harm the forest, and thus we unintentionally harm the tree itself, since the tree exists only within the limits of the forest. We should emphasize that this scrutiny should be made — if only in part — at the source of the right, when the basic right comes into existence and is shaped. The reason for this is that extending the right ab initio into remote areas — areas for which it may not be intended — will inevitably lead to its restriction at the stage of the limitations clause. This process, as we have said, may lead to contempt for the constitutional debate.

44. In the process of shaping and moulding a basic right, when establishing its boundaries and determining the scope of its application, we must distinguish between the nucleus of the right and the area close to the nucleus, on the one hand, and other parts that are more remote from the nucleus, on the other; between ripples of water that are close to the place where the stone struck the water and ripples of water that are further away and become weaker as they go (see and cf. Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ supra, at p. 136); between the right’s centre of gravity and areas that are remoter from the centre of gravity. The closer we find ourselves to the nucleus, the centre of gravity, or to the area close by it, so the strength of the protected values will be greater, and the further we move away from the nucleus, from the centre of gravity, so the strength of the right will be weaker, and the strength of other interests that also compete in the arena of the law — public interests and interests of other individuals — will become (relatively) stronger. When we realize this, we will also realize that the protection afforded to the centre, to the nucleus, is not the same as the protection afforded to the areas that are remoter from the nucleus. And sometimes the area being scrutinized is so remote — remote nor merely in physical terms but remote in that it is subject to the influence of other considerations and interests — that it is possible that we will reach the conclusion that those areas do not fall within the gravitational pull of the right at all.

45. Thus, both in general and also when examining the scope of the application of human dignity, we ought to scrutinize the nature of the protected values carefully to see whether they are central values or marginal ones.

The right to marriage and to have a family life as a constitutional right

46. We all agree — how could we do otherwise? — that a person, any person, has a right to marry and to have a family life. The covenant between a man and a woman, family life, was created before the state existed and before rights and obligations came into the world. First came the creation of man, and man means both men and women. ‘And God created man in His image, in the image of God He created him, male and female He created them’ (Genesis 1, 27 [245]). Thus Adam and Eve were created. A man needs a woman and a woman needs a man; ‘Wherefore a man shall leave his father and his mother and cling to his wife, and they shall be one flesh’ (Genesis 2, 24 [245]). Thus a covenant is made between a man and a woman, and when children are born the extended family comes into existence. In the course of all this, love develops. Thus, in so far as the family is concerned, the state found it ready made and extended its protection to what nature had dictated to us. Society and the state sanctified the covenant of the man and the woman in marriage, and thus the right to marriage and to have a family life came into existence. Philosophers and thinkers may say what they wish; in the final analysis — or to be precise, in the initial analysis — the existence of the family comes from God above, from nature, from man’s genetic makeup, from the very existence of life. Such is the relationship between a man and a woman and such is the relationship between parents and their children. And as we have said elsewhere (CFH 7015/94 Attorney-General v. A [23], at p. 102):

‘It is the law of nature that a mother and father naturally have custody of their child, raise him, love him and provide for his needs until he grows up and becomes a man. This is the instinct for existence and survival inside us… “the blood ties,” the primeval yearning of a mother for her child — and it is shared by man, beast and fowl. … This tie is stronger than any other, and it goes beyond society, religion and state. The conditions of place and time — they and the persons involved — will determine the timing of the separation of children from their parents, but the starting position remains as it was. The law of the state did not create the rights of parents vis-à-vis their children and vis-à-vis the whole world. The law of the state found this ready made; it proposes to protect an innate instinct within us, and it turns an “interest” of parents into a “right” under the law — the rights of parents to have custody of their children.’

It is important to make these remarks, since they may act as our guide in determining the boundaries of human dignity.

47. The right to marry and to have a family life, including the right of a minor to be with his parents, is the basis for the existence of society. The family unit is the basic unit of human society, and society and the state are built on it. It is not surprising, therefore, that the right to a family life has been recognized in the international community as a basic right. This is also the law in Israel. See and cf. Stamka v. Minister of Interior [24], at p. 787; A. Rubinstein, ‘The Right to Marriage,’ 3 Tel-Aviv University Law Review (Iyyunei Mishpat) (1973) 433; see also art. 16(1) of the Universal Declaration of Human Rights, 1948; art. 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; art. 2.23 of the International Covenant on Civil and Political Rights, 1966. Even though this right, the right to marry and to have a family life, has not been expressly included among the basic rights that have been expressly recognized in the Basic Laws, we will all agree — agree and declare — that it is derived from the highest right of all, from human dignity. The right to marry and to have a family life implies, from the context, ‘the right of an Israeli citizen to live with the members of his family in Israel, and the duty of the state to the citizen to allow him to realize his right to live with the members of his family in Israel’ (Stamka v. Minister of Interior [24], ibid.). This is the position with regard to the right to marry and the fundamental right of the Israeli citizen to live with his family in Israel.

Immigration by virtue of the right to marry and to family life as a constitutional right

48. Now we turn to the second sub-question, which derives from the first sub-question. Does the basic right of an Israeli citizen to have a normal family life in Israel — a basic right derived from human dignity — concern only Israeli citizens and permanent Israeli residents, inter se, or perhaps we should say that it extends also to a spouse who is a foreign citizen or resident and who has married an Israeli citizen and wishes to immigrate into Israel and live with him on a permanent basis? An Israeli citizen enters into a bond of marriage with a spouse who is not an Israeli citizen or resident. Does the Israeli citizen have a right in the Basic Law that the foreign spouse should be given the right to immigrate into Israel and to live here on a permanent basis? An additional question in this respect is whether the right to dignity of a minor who is living in Israel extends also to his foreign parent who wishes to immigrate to Israel to be with him? And since the right of a citizen — a right in a Basic Law — implies a duty of the state towards him, we must ask whether the human dignity of an Israeli citizen obliges the state, as a constitutional obligation, to allow the foreign spouse to immigrate into Israel, and whether the human dignity of a minor who lives in Israel obliges the state to allow his foreign parent to immigrate into Israel? We must ask these questions in general, and also in particular — as in our case — when the foreign spouse or parent is a resident of an entity that is involved in an armed conflict with the State of Israel.

49. My colleague President Barak is of the opinion that the right to have a family life in Israel is a constitutional right of the Israeli citizen even if the spouse is a foreigner. In his words (in para. 34 of his opinion):

‘… the constitutional right to establish a family unit means the right to establish the family unit in Israel. Indeed, the Israeli spouse has a constitutional right, which is derived from human dignity, to live with his foreign spouse in Israel and to raise his children in Israel. The constitutional right of a spouse to realize his family unit is, first and foremost, his right to do so in his own country. The right of an Israeli to family life means his right to realize it in Israel.’

I find this normative determination problematic. I understand my colleague’s thinking in his desire to apply the value of human dignity to its derivatives — in our case, to the right of the Israeli citizen to have his family life in Israel even if his spouse is a foreigner — as extensively as possible, and to restrict the rights only by means of the limitations clause. But it seems to me that when we scrutinize the whole picture, we must address both sides of the coin. We are obliged to examine not only the rights of the individual — the citizen of the state — vis-à-vis the state, i.e., the duties of the state vis-à-vis the individual. We are obliged, at the same time, to examine the duties of the state to all of its individuals, or if your prefer, we are obliged to examine closely what obligation the recognition of the right of the individual citizen places on all the residents and citizens of the state, on the other individuals for whom the state is a framework for living together. This all-embracing examination will show, in my opinion, that a broad application of the basic right as my colleague proposes may seriously harm other individuals to such an extent that it is doubtful whether it is right and proper to impose on the state an obligation on the level of a basic right. If this is the case with regard to an individual citizen, it is certainly the case with regard to the impending immigration of tens of thousands of foreigners — in our case, tens of thousands of enemy nationals — who married Israeli citizens while Israel has been engaged in an armed struggle against that enemy.

50. The premise is — we discussed this in our remarks above — that a state, any state, is not obliged to allow foreigners to enter it, and certainly it is not liable to allow foreigners to become permanent or temporary residents in it. We derive this from the supreme principle of the sovereignty of the state, a principle from which we derive the right of the state to determine who may enter it and who may become its citizens or receive a right to live in it. This has also been held on several occasions in Israel. ‘A state, any state, is authorized and entitled to determine which foreigners may enter it and which foreigners may stay in it’ (HCJ 4370/01 Lipka v. Minister of Interior [129], at p. 930); ‘in principle, the state does not owe any duty whatsoever to foreigners who wish to become residents in its territory’ (Conterm Ltd v. Minister of Finance [85], at p. 381 {120}); ‘this gives expression to the principle — which is accepted in modern democratic countries — that the state has broad discretion to prevent foreigners from taking up residence in it. The foreigner does not have a right to come to Israel either as a tourist or as a resident’ (Dimitrov v. Minister of Interior [113], at p. 293). Cf. also Kendall v. Minister of Interior [115], at p. 520; HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [130], at p. 705. See also Clark v. Minister of Interior [111], at p. 117 (per Justice Berinson):

‘As a rule, every country reserves for itself the right to prevent foreign persons from entering it or to remove them from its territory when they are no longer wanted, for one reason or another, and even without any reason…’

Incidentally, in Clark v. Minister of Interior [111] Justice Berinson reviewed the decisions of the courts in England and the United States, and he cited a judgment of the Supreme Court of the United States in Knauff v. Shaughnessy [203], in which a decision of the immigration authorities not to allow a foreign woman who married a soldier during the period of his service in the Second World War to enter the United States was upheld.

51. This principle is a basic principle in the law of the countries of the world. Every state has the natural right — a right deriving from the sovereignty of the state over its territory — to determine who will be its citizens and who will be entitled to enter it. See, for example, Halsbury’s Laws of England, vol. 18 (fourth edition, 1977), at para. 1726:

‘In customary international law a state is free to refuse the admission of aliens to its territory, or to annex whatever conditions it pleases to their entry.’

See also the judgment of the European Court of Human Rights in Abdulaziz Cabales and Balkandali v. U.K. [235]:

‘As a matter of well established international law and subject to its treaty obligations a state has the right to control the entry of non-nationals into its territory.’

In this spirit, the countries of the world, including Israel, have adopted a rule that it is the natural right of every sovereign nation to determine the identity of the persons who may enter it and become its residents. This is what was held by the Supreme Court of the United States, as long ago as 1892, in Ekiu v. United States [204], at p. 659:

‘It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.’

Indeed, even today no foreign citizen has a right — and certainly not a constitutional right — to enter and stay in the United States, even if he is a family member of a United States citizen:

‘An alien has no constitutional right to enter, or to stay in, the United States’ (3B American Jurisprudence 2d, Aliens and Citizens, § 2291).

See also, for example, Knauff v. Shaughnessy [203], Fiallo v. Bell [190]; Landon v. Plasencia [205].

This has also been held by the Court of Appeal in England, when it ruled that a foreigner may not enter the country except in accordance with the laws of the country. In the words of Lord Denning in R. v. Governor of Pentonville Prison [225], at p. 747:

‘… no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason…’

52. A foreigner, therefore, is not entitled to enter the state, and certainly not to immigrate to it, unless it is in accordance with the laws of the state, and many countries of the world have indeed enacted strict immigration laws that place before someone who wishes to immigrate conditions and restrictions that are based on the needs of the state and its policy from time to time. Thus, for example, we find arrangements that distinguish between candidates for immigration on the basis of economic position, profession, age, family status, state of health, biography, etc.. Ethnic origin, nationality and country of origin have also been used to distinguish between candidates for immigration, and it has also been found that many countries even stipulate a quota that restricts the number of persons immigrating to it. The arrangements are unique to each country, and they change from time to time in accordance with the spirit of the times and the needs of the state. With regard to the position in the United States, see, for example, 3A Am. Jur. 2d, Aliens and Citizens, §1:

‘The history of the immigration laws of the United States is one of evolution from no restrictions to extremely narrow qualitative restrictions, to additional qualitative restrictions, and later to more extensive qualitative restrictions, including ethnic ones, and eventually to quantitative restrictions.’

For changes that have occurred over the years in the attitude of European countries to immigration in general, and to immigration for reasons of marriage in particular, see, for example: S. Castles et al., Migration and Integration as Challenges to European Society, Assessment of Research Reports Carried Out for European Commission Targeted Socio-Economic Research (TSER) Programme (Oxford, 2003); Family Reunification Evaluation Project (Final Report, The European Commission: Targeted Socio-Economic Research, Brussels, 2004), at pp. 21–22. These articles are also mentioned in the article of Prof. Amnon Rubinstein and Liav Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ 48 HaPraklit (2006) 315, at pp. 330 (note 54), 341 (note 108).

53. So we see that a state may impose restrictions on immigration into it in accordance with the immigration policy that it deems fit and appropriate for its needs, without taking into account the concerns and wishes of the foreign nationals who wish to immigrate to it. All of this is the case with regard to the foreign relations of the state, vis-à-vis other countries and vis-à-vis persons who are not its citizens or residents. But what about the relations of the state vis-à-vis its own citizens and residents? Does the state also have the power to restrict the entry of foreigners into the state in its internal relations, even if the foreigners concerned are family members of citizens and residents? The answer to the question is yes. The rule of state prerogative is valid with regard to the immigration of foreign citizens or residents, even if they are family members of its citizens or residents. A state is entitled to refuse to allow the foreign family members of its citizens to enter the state, and certainly to refuse to allow them to immigrate to it, and a citizen of the state is not entitled to demand that the state permits his foreign family members to immigrate into the state other than in accordance with the laws of the state. Indeed, although international law recognizes the right of the individual to marriage and family life, it does not recognize the right of the individual to realize this right specifically in his country of citizenship. In other words, the right of the individual to marriage and to family life does not necessarily imply a constitutional right to ‘family reunifications’ in the state. The prevailing legal position in this sphere was recently considered by Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra, at p. 340. In their words:

‘The rules of international law also do not give rise to a right to immigrate for the purposes of marriage. International law admittedly recognizes the importance of the right to establish a family, as well as the importance of the right of a family not to separated by deportation, but there is no express and concrete right in international law that creates a positive duty that a state should allow immigration into its territory for the purpose of marriage, even in times of peace’ (emphasis in the original).

A similar conclusion was reached by the Supreme Court in Shahin v. IDF Commander in Judaea and Samaria [103], which considered a similar case to ours. Cf. Y. Dinstein, ‘Family Reunifications in the Occupied Territories,’ 13 Tel-Aviv University Law Review (Iyyunei Mishpat) (1989) 221, at p. 223. See also, for example, the research published by the European Union in 2004 with regard to the legal arrangements prevailing in the European Union until the year 2004: Family Reunification Evaluation Project (Final Report, The European Commission: Targeted Socio-Economic Research, Brussels, 2004), at p. 22:

‘Although international documents endorse family rights, none of the declarations establishes an explicit right to family reunification. Likewise, although the Convention on the Rights of the Child demands that applications by a child or parents to enter or leave the State for the purpose of family reunification be handled in a “positive, humane and expeditious manner… there is no specification that the provision provides the basis for legal claims to family reunification … The second area of international law, which may be conflictual with the principle of universal family reunification, refers to the precedence of State sovereignty.’

Incidentally, following the rule in international law, the European Union enacted a directive in 2004, in which some of the states of the Union took upon themselves the obligation to enact internal — qualified — arrangements according to which the foreign spouses of residents would be allowed to immigrate into the state. Before the directive existed, the spouses had no such right other than under the internal law of each individual state.

54. A state is made up of its residents. The residents of the state are the persons who shape the image of the society, and the ‘state’ serves as a framework for the society and its residents. The entry of a foreign national into the state as a permanent resident thereof means a change of the status quo ante in the relationship of the citizens and residents inter se. Accepting a resident or a new citizen into Israeli society makes his status equal to that of the residents and citizens of the state, and in this way the image of the society and the state changes. Where we are speaking of an individual resident or citizen, the change is infinitesimal. But this is not the case with a massive incursion of foreign residents and citizens whose joint influence on the state may significantly change its image. Giving an individual a right to bring with him to Israel a foreign spouse is therefore capable of changing the image of society, and the question that arises is whether it is right and proper that we should entrust to each and every citizen and resident of the state a constitutional key that makes the doors of the state wide open to foreigners. The basic rights of the individual are, mainly, rights vis-à-vis the state; if we recognize a constitutional right of a citizen, of every citizen, to bring to Israel, as he wishes, a foreign spouse or parent, we will find that the recognition of the innate right of a citizen to have a family life with foreigners in Israel does not merely determine the right of the Israeli citizen. In the very same breath, it limits and restricts the rights of other citizens whose opinion has not been heard. In this regard I say that it would appear that the human dignity of Israeli citizens — of all Israeli citizens — demands that each citizen is not given a free hand, on the level of a constitutional right, to change the social status quo ante by bringing foreigners to Israel, even as spouses. The ‘state’ is the authorized spokesperson of Israeli citizens and residents, and it would appear that even a state would not be prepared to open up its borders by entrusting to every citizen the key that opens the gates of the state, even for the immigration of a spouse or parent into the state. The power to determine who will be the citizens and residents of the state is entrusted to the laws of the state, and it is the state that will decide who will be entitled to immigrate into it.

55. Moreover, the state has a duty to maintain a balanced immigration policy, a policy that befits the needs of the state and its basic values. The state may not discharge this duty by transferring to its citizens the power to determine who will immigrate into it. Someone who wishes to immigrate into the state must apply to the organs of the state and not to one of its citizens, and it is the organs of the state who will decide the application. Recognizing that the state has a constitutional obligation to allow the entry of foreign family members can only mean a transfer of sovereignty to each and every individual citizen, and this inevitably harms the ability of the state to formulate its policy and respect its heritage. In other words, giving an automatic right of immigration to anyone who marries one of the citizens or residents of the state means that every citizen holds the right to allow immigration into the state, without the supervision of the state, and it is clear that no government in the world will allow not only the functioning but even the sovereignty of the state itself to be harmed in this way. See, for example, A. John, Family Reunification for Migrants and Refugees: a Forgotten Human Right? (2004), at p. 10:

‘No Government wished to find itself shackled to a precise and enforceable standard of family reunification rights that would impede on the State’s sovereign right to control who entered and settled on its territory.’

It is not surprising that the author of this research reaches the conclusion that, notwithstanding all the rights in the law, including the right to family life, the countries of the world have consistently refused to recognize the existence of a right to family reunifications on the grounds of marriage, since this right violates the sovereignty of the state and its power to determine who will immigrate into it (ibid., at p. 6):

‘… in all the international instruments adopted, States have opposed any recognition of a right to family reunification that might be considered to substantially curb States’ sovereign right to control who may enter or settle in its territory.’

56. Indeed, a state — any state — will not agree to give its individuals, or any one of them, a basic right to change the status quo ante in the society and the state. Even states that recognize an express constitutional right to marriage and to family life will find it difficult to permit free immigration by virtue of this right, and indeed it has been found that many of these states ‘… repudiate the principle that marriage itself (or its breakdown) results in an automatic change in the citizenship of the spouses’ (Rankin v. Minister of Interior [112], at p. 116). Moreover, even when they grant a right of immigration for family reasons, the countries of the world have tended to restrict this right by imposing restrictions on the realization of the right. Every state has its own arrangement: an arrangement that suits its basic values, the immigration policy it determined and its economic and political needs, and no one arrangement is identical to another. At the same time, there are general lines of similarity between the arrangements. Thus, for example, it has been found that many states impose age restrictions on immigration for reasons of marriage, and they allow the foreign spouse to immigrate into the state only if one or both of the spouses have reached a minimum age. When there are no means of subsistence — sometimes for a lengthy period — the immigration of the foreign spouse into the state will not be allowed. Some states require the foreign spouse to have various ties with the state absorbing them. Receiving citizenship in the state absorbing them usually requires a lengthy stay in the absorbing state, requirements of knowing the language of the absorbing state, being familiar with its culture and heritage and taking an oath of allegiance to the state. Not infrequently the foreign spouse is also required to waive his original citizenship as a condition for receiving his new citizenship. For a comprehensive survey of the requirements imposed in the countries of the world, see: Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra. Thus, for example, Rubinstein and Orgad tell us at the beginning of chapter 3 of their work (at p. 328):

‘In recent years, the trend in European countries is to make the conditions for immigration on the basis of marriage stricter. In a significant number of countries, laws have been enacted in recent years to restrict the possibility of immigrating for the purpose of marriage. Thus, for example, the economic conditions required of the spouses who wish to immigrate for the purposes of marriage have been made stricter, basic cultural requirements (such as learning a language) that the immigrating spouse must satisfy before he immigrates have been introduced, restrictions on the age for immigration have been imposed, ties have been required with the state to which the spouses wish to immigrate and the burden for proving the genuine nature of the marriage has been made stricter. The European Court of Human Rights has usually given its approval to the stringent legislation that has come before it.’

Indeed, it may be argued that all these restrictions should be examined within the framework of applying the limitations clause, but we say that this subject-matter is extremely sensitive, and in the case of a fundamental public interest, such as the interest that underlies the issue before us, we ought to allow the public interest to have its say at the outset, when determining the scope of the basic right. This is the panoramic view to which we refer, a view that allows us to see the individual and the society in which he lives as integral parts of one whole.

57. In summary let us therefore say this: the countries of the world do not recognize in general the existence of an absolute right, a basic right that the citizen has to have a foreign spouse immigrate into the state. The right of the spouse to enter the state is a right that may be given by virtue of laws determined on the basis of the needs of the state; the laws of the state may restrict the right and even deny it entirely, and where there is no right the entry of the foreign spouse into the state, and certainly his immigration to it, will not be allowed.

The struggle and the balance

58. Against the background of all the rights and interests that compete against one another, this is a struggle of giants. On one side there is the right of the state not to allow foreigners to enter its territory, and on the other side is the right of the citizen — a basic right, a constitutional right derived from human dignity — to live together with his family members in Israel. The question that arises is what is the law where an Israeli citizen wishes to have a family life in Israel with his foreign spouse or parent — a spouse or parent who is neither a citizen nor a resident of Israel? Does the basic right to have a family life in Israel also apply to a couple where one of them is a foreigner, or perhaps we should say that the basic right applies only to a couple where both of them are Israeli citizens or residents? Does the basic right to family life in Israel apply also to minors who live in Israel with the Israeli parent and wish that the foreign parent should also be given a status? Note than the question being asked here merely concerns the scope of the basic right of human dignity. Thus, even if we determine that human dignity does not imply a basic right of the citizen to have a family life in Israel with a foreigner, our consideration of the citizen’s rights will not have ended, since it is possible that the citizen has an ordinary right that is not a basic right.

59. In our case, the question before us now is whether the Citizenship and Entry into Israel Law violates a constitutional basic right of Israeli citizens. My colleague President Barak holds that the value of human dignity, as expressed in the Basic Law: Human Dignity and Liberty, gives rise to a constitutional right to have a family life in Israel, even where one of the spouses is a foreigner, even where a foreign parent wishes to receive a status by virtue of his child (which, as aforesaid, is completely contrary to the case law rule that prevailed hitherto), and that the provisions of the law violate this constitutional right. But there may be persons who claim that this scrutiny of the right to have a family life in Israel — a scrutiny that focuses solely on an Israeli citizen and his family life in Israel — is not complete. This is because, in order to examine the scope of the right of an Israeli citizen to have a family life in Israel with a foreigner, we must examine closely the following two values and weigh the one against the other: one value is the strength of the right to have a family life in Israel as derived from the values which the right seeks to express in the law. There are many sides to the right to family life, and as we have said in our remarks above, the protection of the nucleus of the right is different from the protection of the periphery of the right. The other value is that we must examine whether recognition of a constitutional right as proposed violates other values or interests; and if it violates other values or interests, is the strength of those values or interests on the level of a basic right — a strength that is capable of defining boundaries for the basic right — or should they be located only in the second stage of the scrutiny, when examining the conditions of the limitations clause?

60. I placed all the values and considerations into one pot, and my conclusion is that the value of human dignity — in principle — does not give an Israeli citizen a constitutional right to bring a foreign spouse into Israel. This conclusion is implied equally by an examination of the strength of the right to have a family life, by the conflicting values and interests and by the conflict between the aforesaid right with the aforesaid values and interests.

61. With regard to the strength of the constitutional right to have a family life, I do not nor shall I deny the constitutional right of an Israeli citizen to have a family life. This right, as we have noted, is required by nature, and it is right and proper for the law to encompass the natural instinct in man and protect it in statute. In the words of the Roman poet Horace (Quintus Horatius Flaccus, Epistles 1, 10: naturam expelles furca, tamen usque recurret (‘you expel nature with a pitchfork, but it always comes back’). But the strength of this constitutional right, which is derived from the value of human dignity, becomes weaker the further we distance ourselves from the nucleus and approach the periphery. We are not concerned now with the nucleus, with the right of a person to marry. We are not concerned with the essence, with the right of a person to establish a family and to live together with that family. We are concerned with an addition to all of these, with the question of the right of an Israeli citizen to bring with him to Israel a foreign spouse, and by so doing to change the status quo ante of Israeli society. This right, no matter how much it may be a desirable right, is not necessarily a part of the nucleus and we may not necessarily recognize it as a constitutional right.

62. But the values and interests that conflict with the argument concerning the constitutional right of the citizen to bring a foreign spouse to live in Israel are fundamental. The conflicting values and interests are found in the prerogative of the state to decide from time to time the immigration policy that it deems appropriate, a policy that can shape the image of the state and the image of the society in it. This prerogative of the state has a constitutional status, and it therefore is capable of affecting the scope of the right to have a family life. This prerogative of the state is not required — nor should it be required — to bow its head and enter the constitutional debate within the framework of the limitations clause. Its place is on the first page of the constitution, when the values and the basic rights of the individual are being shaped. The strength of this interest in our case is so strong that it can affect the scope of application of the right to have a family life. In other words, the strong and decisive interest of the state in protecting the identity of society in Israel is capable of overriding — and, it should be emphasized, on the constitutional level, as opposed to the legislative level — the strength of the right to family life in so far as the immigration of a foreign spouse into Israel is concerned. The state, it should be recalled, is merely a collection of individuals and groups that live together, and the meaning of this for our purposes is that the state’s prerogative constitutes an expression of the protection that the citizens of Israel need. A constitution is created, first and foremost, for the people of the land and to regulate life for the residents and citizens of the land inter se. The constitution of the United States is for the people of the United States, the German constitution is for Germans and the Basic Laws in Israel are for Israelis and for regulating relations between them and the state and among them inter se. But when a foreign element comes into the system — in our case, a foreign spouse — I doubt whether the Basic Laws were originally intended to give basic rights to the individual while directly influencing the other individuals in the state and the image of society. I very much doubt it.

63. Moreover, let us be mindful and not forget: immigration arrangements, by their very nature, are specific arrangements; they are arrangements that change from time to time in accordance with the needs of the state (see supra, at para. 39). Even if these arrangements are included in the constitutions of various states, nothing in the fact that they are placed in the constitution can change their nature and substance as specific arrangements. And since they are such, we will have difficulty in finding an analogy between the arrangements of one constitution and the arrangements in another constitution, and between the arrangements of a foreign country and Israeli law. As President Shamgar said in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 329:

‘But it should be understood that the consideration of other constitutions and their implementation is merely comparative. Every constitution reflects in the protection of rights that are granted therein the social order of priorities that is unique to it and the outlooks that have been adopted by its society. It need not be added that there is also a whole range of political considerations that accompanies the formulation of a constitution. Thus, for example, in Canada it was decided not to include a prohibition against the violation of property in the Charter of Rights.’

Take the case of Ruritania, a country in the centre of Europe. Its inhabitants are growing old and it wishes to stimulate the life cycle in the country and revive its economy. Such a country will tend to encourage immigration, and naturally it will also extend the right of immigration to family members. After some time, when Ruritania finds that immigrants who came into it have changed the image of the state — and possibly even threaten the hegemony of the original citizens — Ruritania may change the law and stop immigration, even for family reasons. But Zenda, the neighbour of Ruritania, is different. The population density in Zenda is high, the birth rate is high, and naturally it will tend to limit immigration, including immigration for family reasons.

64. The same criteria apply to the question whether a minor living in Israel with his Israeli parent has the right to bring to Israel his foreign parent. I cannot accept that the minor has an inherent constitutional right to this, namely a right that imposes a duty on the state to allow into Israel a foreigner merely because of his family ties. We have seen that an Israeli citizen cannot impose on the state a duty to allow a foreigner to enter it, and certainly he does not have the power to grant the foreigner a status under the law. The same applies to a minor who lives in Israel with his Israeli parent; he cannot impose such a duty on the state. It is in the interest of the state and its individuals that the state should be the one to decide who will enter it, who will join Israeli society and what will be the image of this society. This interest is sufficiently great and strong to qualify the interest in recognizing a constitutional right to bring a foreign parent to Israel.

65. I will add to this that the harm caused by the Citizenship and Entry into Israel Law to children is limited. We should recall that the law, in s. 3A, provided a special exception for the cases of children, as follows:

‘Permit for children

3A. Notwithstanding the provisions of section 2, the Minister of the Interior, at his discretion, may —

 

(1) give a minor under the age of 14 years, who is a resident of an area, a licence to live in Israel in order to prevent his separation from his custodial parent who lives lawfully in Israel;

 

(2) approve an application to obtain a permit to live in Israel from the area commander for a minor under the age of 14 years, who is a resident of the area, in order to prevent his separation from his custodial parent who lives lawfully in Israel, provided that such a permit shall not be extended if the minor does not live permanently in Israel.’

Thus we see, according to s. 3A(1) of the law, that minors up to the age of 14 are entitled to receive a status in Israel in order to prevent their separation from a custodial parent who lawfully lives in Israel. In other words, the right of these minors to live with the custodial parent is not harmed at all. With regard to minors over the age of 14, these can, according to s. 3A(2), receive a permit to stay in Israel in order to prevent their separation from the custodial parent. Such a permit will be extended only if the minor lives permanently in Israel.

This is the case with regard to the right of children to live with the custodial parent in Israel. This arrangement is satisfactory, and the legislature did well to provide an exception that allows children to stay if only with one of their parents in Israel. It should be admitted that the Citizenship and Entry into Israel Law in its original version harmed children considerably by preventing them from living with the custodial parent in Israel. But after the law was amended by adding the arrangement in s. 3A, the position has improved greatly, both with regard to minors under the age of 14 and minors above the age of 14. According to the law in its current form, I see no proper justification to declare it void in this respect.

66. With regard to the interest of a minor who is living with his custodial parent in Israel to have his foreign parent also live with him in Israel, and, in consequence, the interest of the foreign parent to live with his minor child and with his family members in Israel — these are interests that my colleague the president addresses. I too agree with my colleague’s position that the separation of the foreign parent from the minor is not desirable, but I am of the opinion that even in this case the minor does not have a protected basic right that his foreign parent will live in Israel merely because he is his parent. In this case, the immigration considerations that we have discussed make themselves heard — and they do so loudly — and the first of these is the right of the state to decide who will be its residents and citizens (to these considerations we will also add below considerations of a special kind — considerations of the state in a time of war). This was the approach of case law in Israel even in times of peace. Before the Citizenship and Entry into Israel Law was enacted, a foreign parent was not entitled to receive a status in Israel by virtue of his minor child who lived in Israel. In the words of President Barak in Dimitrov v. Minister of Interior [113]: ‘… in principle, the citizenship of the daughter is insufficient to grant a status of a permanent resident to her foreign parent…’ (ibid., at p. 294; for additional references, see para. 32 above). We should also add that s. 3B(3) of the Citizenship and Entry into Israel Law provides that the area commander may give a resident of the territories a permit to stay in Israel ‘for a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.’ It is possible and right to interpret this provision of statute as granting power to the area commander to allow the entry of the foreign parent into Israel to visit his minor child temporarily. We should also remember that the restriction is temporary — until the parent reaches the age mentioned in the law, which is 25 for a woman and 35 for a man, at which age it will be possible to give the parent a permit to enter Israel.

67. This, then, is the position: the harm to minors living in Israel with the custodial parent is currently limited in comparison to the law which prevailed before the enactment of the amendment to the Citizenship and Entry into Israel Law. The law does not apply at all to a child who was born in Israel to an Israeli parent, since such a child receives the same status as his Israeli parent. In addition, the law allows a minor who is a resident of the territories and was not born in Israel to live in Israel with his Israeli parent (s. 3A of the law). With regard to the foreign parent, who is a resident of the territories, it is true that he is not entitled to enter Israel. Has any constitutional right of the minor who lives in Israel with his custodial parent been violated as a result? The answer to this must be no, both because the violation is (relatively) limited and because of the very powerful interest that conflicts with it. In any case, we do not know from where a minor acquired a basic right that his foreign parent will follow him and also obtain a right to live in Israel.

Comments regarding the scope of application of the constitutional right to family life

68. Before I consider the question whether an Israeli citizen has a constitutional right — a basic right — to bring to Israel his foreign spouse, a national of an enemy entity, in a time of war, I would like to make two comments that concern the remarks made by my colleague the president with regard to the constitutional right of an Israeli citizen to bring his foreign spouse into Israel. One comment concerns remarks which I made in Stamka v. Minister of Interior [24]. The other comment concerns reliance on constitutional arrangements in foreign countries.

a.     Concerning remarks that I made in Stamka v. Minister of Interior

69. My colleague the president did me the honour of citing — twice, in para. 27 and in para 34 of his opinion — remarks that I made in Stamka v. Minister of Interior [24], at p. 787, in which I said:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family reunifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family reunifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice.’

After citing these remarks (in para. 34 of his opinion), my colleague the president goes on to make the following remarks: ‘Indeed, the constitutional right of the Israeli spouse — a right that derives from the nucleus of human dignity as a constitutional right — is “to live together in the place of their choice”.’ I do not retract the remarks that I made, but I do not think that it is possible to deduce from them that an Israeli citizen has a constitutional right that his foreign spouse can enter Israel and take up residence in it.

First, the continuation of the remarks that I wrote (ibid.) should be read. They state:

‘This is the case here too. The respondents recognize the right of spouses — an Israeli citizen and someone who is not an Israeli citizen — who were genuinely married to live together in Israel, and the right of the foreigner to an arrangement at the end of which he will receive a permanent status in Israel: permanent residency and citizenship. What then is the complaint? It concerns the length of that “staged arrangement” and the inflexibility of the arrangement.’

The explanation of this is that when I spoke about the ‘right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel’ — and certainly when I spoke of ‘the right of the foreigner to an arrangement’ — I was describing a policy that is practised by the state. Indeed, I regarded this policy as a proper policy, but I did nothing more than describe the legal position that prevailed at that time. I should add that this policy — in so far as I am aware — has not changed in principle. The policy is still in force, except with regard to residents of the territories. The question is merely whether the change that took place in the policy with regard to residents of the territories is a lawful change.

 Second, and this is the main point, the judgment in Stamka v. Minister of Interior [24] was written on 4 May 1999. The serious armed conflict between the Palestinian Authority and Israel — which is a quasi-war — began more than a year later, in September 2000, and it utterly changed the relationship between the Palestinian Authority and Israel. We have discussed above the difficult position of Israel since the armed conflict broke out, and nothing needs to be added. Against this background, the Knesset enacted the Citizenship and Entry into Israel Law, as it sought to protect the residents and citizens of Israel against those who seek to harm it. The Mejellah, in its wisdom, taught us (in s. 39) that: ‘It cannot be denied that, when the times change, the laws also change with them.’ This is what happened in our case. The times changed — and they changed radically — and therefore it was decided to make a change in policy.

Third, my remarks are qualified automatically by ‘qualifications of national security, public safety and public welfare.’ With regard to these qualifications there is no need to add anything except for this, that they are inherent to the subject-matter and their existence would not be in doubt even had they not been written expressly.

70. We therefore return to the beginning, and the question is whether there is any flaw or defect in the Citizenship and Entry into Israel Law. My answer to this question is, as aforesaid, no.

b.     The interpretation of a constitution and arrangements from comparative law

71. In his opinion, my colleague President Barak surveys legal arrangements that are practised in various countries around the world, including the European Union, and his conclusion is that ‘the right to family life is… a constitutional right enshrined in the right to human dignity’ (para. 38 of his opinion). I am prepared to accept that this is the law in the legal systems of those countries mentioned in my colleague’s opinion, just as I accept that the right of a person in Israel to have a normal family life is a right that derives from human dignity. This is what we are taught by natural law, and the state merely embraces what is already there by wrapping natural law in the garb of law and constitution. But we are speaking of the creation and existence of the family unit between members of the state and within the framework of the state. This is not the case when a citizen of the state wishes to marry a foreign national and establish a family unit in the state. This kind of situation gives rise to the question of immigration in all its force, including immigration by virtue of the right to marry and to establish a family, and this issue is special and unique to each country, and what is more, it changes from time to time. Constitutional and legislative arrangements that are in force within the territory of a state are, admittedly, derived from basic values that a state wishes to foster in its midst, but to the same degree they are also built on the needs of the state and the reality of life with which it is required to contend. It is not surprising, therefore that the case law of the court in every country is context-dependent on the positive normative arrangement adopted in the constitution of the state, the prevailing law, basic principles and the reality of life. From a factual viewpoint, the use of comparative law in our case — like in every case — must be made sensitively and carefully, after thorough examination as to whether the legal arrangements practised in one country or another are compatible with the law in Israel and the reality of life with which we contend. This was discussed by my colleague President Barak with regard to legislative and constitutional arrangements concerning the environment, and I will cite some of his remarks that are apt also in our case (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 514):

‘In comparative law there is much discussion of the environment. Many laws addressing the environment have been enacted in many countries… sometimes the environment has been given a constitutional status. In a large number of constitutions, a constitutional right to have a suitable environment has been recognized…’

And further on (at pp. 515-516):

‘This comparative law — whether in the international sphere or in the national sphere — is of great importance… Nonetheless, each country has its own problems. Even if the basic considerations are similar, the balance between them reflects the uniqueness of every society and what characterizes its legal arrangements… Indeed, this is the power and these are the limits of comparative law. Its power lies in extending the interpretational horizon and field of vision. Its power lies in guiding the interpreter with regard to the normative potential inherent in the legal system… Its limits lie in the uniqueness of every legal system, its institutions, the ideology that characterizes it and the manner in which it deals with the individual and society. Indeed, comparative law is like an experienced friend. It is desirable to hear his good advice, but this should not replace one’s own decision.’

See also LCrimA 8472/01 Maharshak v. State of Israel [131], at p. 474:

‘… It is a burden that is imposed on us to take care not to follow foreign legal systems blindly, and especially to know how to distinguish between principles and doctrines and ways of thinking and techniques for arriving at a solution, from which it is possible to derive inspiration and wisdom, and between details and specific solutions which we should ignore. Indeed, comparative law is capable of extending one’s thinking, enriching knowledge and wisdom, freeing us from provincialism, but at the same time we should not forget that we are dealing with our own system and our own country, and we should avoid the imitation of assimilation and self-deprecation.’

72. We should remember that we are Israeli judges, we judge in Israel and we dwell among our people. Although in general it is proper for us to take a look at foreign legal systems, to learn and to receive inspiration, we should always remember that normative arrangements that were created and exist in other places were created and exist against a background of a reality that prevails in those countries and that exist within legal systems that give expression to that reality, and therefore we should not follow blindly — in the manner of assimilation and self-deprecation — normative arrangements that are practised in those places. This is true both of legislation and of the constitution. As President Shamgar told us in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 329:

‘But it should be understood that the consideration of other constitutions and their implementation is merely comparative. Every constitution reflects in the protections of rights that are granted therein the social order of priorities that is unique to it and the outlooks that have been adopted in its society. It need not be added that there is also a whole range of political considerations that accompanies the formulation of a constitution. Thus, for example, in Canada it was decided not to include a prohibition against the violation of property in the Charter of Rights.’

The more a normative arrangement is influenced by the reality and the specific needs of the country where it prevails, the harder it will be to learn from it and to make an analogy between it and the State of Israel in which we live. This is true in general and it is also true in this case. The attitude of each state to immigration arrangements — including immigration arrangements by virtue of the right to marry and to family life — originates not only in the legal system and its characteristics in each different place but also, mainly, in the reality with which the state is required to contend. It is therefore not surprising that the countries of the world have adopted and continue to adopt, each for itself, arrangements that are suited to its needs from time to time, and moreover they tend to change from time to time the immigration arrangements prevailing in them according to the reality — a changing reality — with which the state is required to contend. See the remarks that we cited above (in para. 52) with regard to the position prevailing in the United States and changes in immigration arrangements in that country.

73. With regard to us, we doubt whether among all those countries, from which my colleague the president seeks to derive an analogy, there is another country that is contending with a reality similar to the reality with which Israel is contending. Of the many differences between Israel and all those countries — whether considered individually or all together — we should remember most of all that extremely hostility exists between the Palestinian Authority and Israel; the declared intention of the body that controls the Palestinian Authority — Hamas — to destroy Israel and to wipe its name off the face of the earth; the sad fact that our time is a time of armed conflict — a time of quasi-war — between us and the Palestinian Authority. We should add to the organization that controls the Palestinian Authority the fact that the population in the territory of the Palestinian Authority, in general, is hostile and inimical to Israel, and I think that we can be cured of the need to derive an analogy from the legal systems of other countries whose position and geo-political status is more different than similar to the position and geo-political status of the State of Israel. Is there any other country that is being asked to allow in its territory the establishment of a family unit in which one of its members is an enemy national? On all of this, and more besides, see Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra.

74. For our purposes, we should say that even were we to adopt general basic principles that guide the paths of cultured countries of the world, we would have difficulty following specific arrangements that were chosen by the various countries, whether within the territory of the European Union or in any other place. The status and way of life of those countries, and especially the security position in them, are so different from the status of Israel, its way of life and the security position that prevails in our country that an analogy from the legal systems practised there — legal systems that reflect what is happening in those countries — is out of place.

Interim remark

75. Hitherto we have considered the question whether Israeli law gives an Israeli citizen — or does not give him — a constitutional right, a basic right, to bring to Israel his foreign family member for permanent residence or even for temporary residence. Our answer to the question was, as we have explained, that he does not. Let us now turn to discuss an additional matter that arises in our case, which is whether the Israeli citizen has a constitutional right to bring to Israel his foreign family member when that family member is a resident of a hostile entity that is involved in an armed conflict with Israel.

Immigration in times of war

76. Does the constitutional right to family life, a right that is derived from the value of human dignity, imply an innate right of the citizens and residents of Israel to bring to Israel their foreign family member (a spouse or parent) who is a resident of a hostile entity that is involved in an armed conflict with the State of Israel? My answer to the question is no. In this case too I think that the strength of the right to family life is confronted by another strong and very powerful interest: the lives and security of the citizens and residents of Israel and the security and stability of the State. These latter interests are capable of preventing, in my opinion, a recognition of the existence of a constitutional right in times of war to allow the entry of a resident of an enemy state into the territory of the State of Israel. The balance is between the right of individuals to family life and the right of others to life. In this context, we find apt the remarks that were made with regard to the way in which Canadian legislation concerning the war on terror should be scrutinized as legislation whose purpose is to protect all liberties:

‘The configurative analysis of the Bill in terms of national security versus civil liberties may be as misleading as it is inappropriate in its framing of the issues. It appears to suggest — however inadvertently — that those who are against the legislation are the true civil libertarians, while those in favour of it are somehow indifferent to, if not insensitive to, civil liberties. The point is that there are good civil libertarians on both sides of the issue — and the civil libertarian issue should be considered on the merits and not as a function of the labeling of one’s positions as being for or against the legislation.

The better approach from a conceptual and foundational point of view is to regard the legislation as human security legislation, which seeks to protect both national security — or the security of democracy if not democracy itself — and civil liberties. As the United Nations puts it, terrorism constitutes a fundamental assault on human rights and, as such, a threat to international peace and security, while counter-terrorism law involves the protection of the most fundamental of rights, the right to life, liberty, and the security of the person, as well as the collective right to peace’ (I. Cotler, ‘Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy,’ in The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (R.J. Daniels, P. Macklen and K. Roach, eds., 2001) 111, at pp. 112-113).

77. I believe that even those who support the position that the Israeli citizen should have a right — a constitutional right or a legal right — to have his foreign family member enter Israel and reside in it will agree that reasons of national security and public security should qualify the right of the individual to have his family member enter the country and reside in it. Thus, if the state authorities discover that a foreign national presents a specific security risk to national security and public security, that foreign national will not be allowed to enter Israel, whatever his family status may be. See, for example, Stamka v. Minister of Interior [24], at pp. 787-788; HCJ 2208/02 Salama v. Minister of Interior [132]; AAA 9993/03 Hamdan v. Government of Israel [133]; HCJ 2455/95 Dragma v. Minister of Interior [134]; HCJ 7206/96 Mansour v. Minister of Interior [135]. Cf. s. 2(b)(3) of the Law of Return. Cf. also HCJ 1227/98 Malevsky v. Minister of Interior [136]; HCJ 442/71 Lansky v. Minister of Interior [137]. This is the law where the foreign national himself is suspected of being dangerous to national security, and it is also the law where the foreign national is associated with persons who endanger public safety and may influence him. See, for example, HCJ 7061/05 A v. Minister of Interior [138]:

‘Someone who wishes to obtain permanent residency in Israel cannot be associated with persons active in hostile activity and terror. Residency in Israel and an association with such persons is a contradiction in terms…’

78. This natural and simple rule, that a foreign national who presents a risk to national security will not be allowed to enter the state, leads almost automatically to the conclusion that in times of war hostile nationals will not be allowed to enter the state, since they are presumed to endanger national security and public security. Indeed, it will not be difficult to understand and realize that a foreign family member who is not an Israeli citizen has strong ties with his family and his place of birth, and that these ties are not severed even if the person leaves his home and comes to live in Israel. This feeling of loyalty of a person to his people and his place of birth is a natural feeling, a feeling of great strength, and it is much stronger where a person leaves behind him — and this is the usual case — parents, brothers, sisters, other family members, friends and companions. And so, when the two peoples — the people of the family member’s place of birth and the people among whom he now lives — become involved in an armed conflict with one another, a person is likely to be required to decide where his loyalties lie and whom he will aid. Often he will support his place of birth and seek to assist it in one way or another. The risk and the danger will increase greatly in a case where the family member has left behind him family members and friends who may be subject to harm and threats from the regime in his place of birth or from gangs in that country. The risk and the danger will increase even more where the person belongs to a people that seeks to destroy the state that absorbed him and that is waging against it a bloody struggle that has continued for many years.

79. The premise in international law is that in times of war the citizens of the warring states become hostile to one another, and that every citizen will regard himself as loyal to his country and place of birth and hostile to the enemies of his place of birth. It is natural, therefore, that a state that is in a situation of conflict may determine special arrangements concerning enemy nationals, including, of course, an arrangement that prevents them from entering its territory. See J.G. Ku, ‘Customary International Law in State Courts,’ 42 Va. J. Int’l L. (2001) 265, at p. 322:

‘Because the declaration of war between sovereigns transforms every individual subject and citizen of those sovereign nations into enemies, the traditional law of nations naturally require that enemy aliens be accorded different legal status than alien subjects hailing from friendly powers. In particular, the treatise writers found that the law of nations imposed severe restrictions on the nature of the contacts between subjects of sovereigns at war with each other.’

80. In our times — unlike in the past — we no longer make formal declarations of war; and wars — again, unlike in the past — are not necessarily between states. But the rules and principles that were intended to protect the citizens and residents of the state are valid and logical even where an armed conflict is being waged not between states, but between a state and an entity, like the Palestinian Authority, which is not a state. In such circumstances, and in other similar ones, the presumption of hostility exists in full strength. See and cf. E. Gross, The Struggle of Democracy against Terror — Legal and Moral Aspects (2004), at pp. 70 et seq.; Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra, at p. 317, and see the references cited there.

81. On the basis of this logical deduction, a deduction that is common to all human beings and to all human peoples, it has been determined in international law that when there is a dispute between nations, a nation may prohibit the nationals of the foreign nation, as such, from entering or immigrating to it. The reason for this is that because of the strong and special ties that they have to their place of birth, people and family members, enemy nationals, as such, constitute a special risk group. Admittedly, not all enemy nationals are actually enemies, but in the heat of an armed conflict there arises a quasi-presumption that enemy nationals — all enemy nationals — are enemies of the state, and the state has no legal duty to rebut the presumption and distinguish between an enemy national who is likely to endanger the state and its residents and an enemy national who is unlikely to endanger the state and its residents. There is a presumption that enemy nationals, because they are enemy nationals, are the enemies of the state and that they endanger the safety and the security of the public in the state that is at war with their state; and the state is entitled — and is even obliged by virtue of its duty to protect its citizens and residents — to refuse the application of enemy nationals to immigrate to its territory. This rule, a rule in times of war and conflict, is valid also with regard to the case of persons who wish to immigrate by virtue of the right to marry and raise a family, since even these are likely to endanger the security of the state and the security of the residents of the state. See Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra, at pp. 320-321:

‘The accepted norm of not allowing enemy nationals to enter in times of war or in times of armed conflict applies also to immigration for the purposes of marriage (marriage migration). International law and the relevant conventions impose various duties on the state with regard to family reunifications. Thus, for example, a state that is a party to an armed conflict is required to facilitate meetings of families that were compelled to separate during the fighting (even though the duty is to assist the renewal of the connection and, in so far as possible, family meetings, there is however no duty to allow family reunifications or to allow immigration for the purposes of marriage). A state that is a party to an armed conflict is also required to make an effort in order not to separate existing families during the armed conflict. But the state has no legal or moral duty in international law to allow immigration for the purposes of marriage from state A to state B, as long as the two states are involved in an armed conflict, and even when they are completely at peace.’

82. We tend to the outlook — which we have explained in detail above — that the state has no constitutional or legal obligation to allow family reunifications in its territory. But even if in times of peace the state is accustomed to allow foreign family members of its citizens to immigrate into the state (see Stamka v. Minister of Interior [24]), the state may in times of war suspend this practice and prevent the entry of foreign family members who are enemy nationals notwithstanding the harm to the individual who married an enemy national or to a minor who lives with his Israeli parent only. A time of war is not the same as a time of peace. Although we all know that ‘even when the trumpets of war sound, the rule of law will make its voice heard’ (Sabiah v. IDF Commander in Judaea and Samaria [110], at p. 369), we also know that things which are appropriate in a time of peace cannot be maintained in a time of war. In the words of the wisest of men (Ecclesiastes 3, 1; 3, 8 [246]) ‘For everything there is a time and for every desire there is an occasion under the heavens… A time to love and a time to hate, a time of war and a time of peace.’ I agree with my colleague the president that the state does not have two systems of law, one for times of calm and one for times of war. The basic rights of the individual are alive and well even in times of security risks. At the same time, we cannot deny ‘that in times of war there arise — or you may say, there awaken — considerations and interests that are unique to this time, considerations and interests that can restrict the spheres of application of the rights of the individual,’ or at least stop their realization (the limitations clause). We cannot deny that in times of war a state may restrict the individual in the realization of his rights, provided that this restriction is done for a proper purpose — i.e., in order to maintain public interests of great weight — for a restricted period and to a degree that is not excessive. Cf. s. 12 of the Basic Law: Human Dignity and Liberty. This (at least) is the case before us.

83. Human rights stand firm, with their full force, even in times of war and emergency, but the situation of war and emergency can affect the restrictions that can be placed on their realization. The question is one of dosage; the dosage in times of peace is not the same as the dosage in times of war. In times of peace, the right will blossom and spread its scent all across the land. But this is not the case in times of war or in times when security risks are constantly lying in wait for the residents of the state.

Let us remember that rights that are given to the individual in a democracy will not exist if there is no state or there is no life for the citizen. We are accustomed to exalting — and rightly so — the basic rights of the individual, human dignity, the principle of equality and with them other basic values on which our legal system prides itself. These rights and principles are of supreme importance. They are exalted above all else. Without them we would have no democracy worthy of the name. But the very existence of the state and the right of the individual to life are more exalted and important than all of these. Without a state, the rights of the individual would have no existence, and the basic rights of the individual must not become a spade to be used for undermining the existence of the state. Cf. Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [101], at pp. 388, 390; Neiman v. Chairman of Elections Committee for Eleventh Knesset [87]. Such is the existence of the state and the risks to the life of its citizens. ‘Without security, it is not possible to protect human rights’ (per Justice D. Dorner in Saif v. Government Press Office [86], at p. 77 {197}). Therefore, ‘human rights should not become a spade for denying public and national security’ (CrimFH 7048/97 A v. Minister of Defence [88], at p. 741). Safeguarding the lives and security of the public may necessitate a certain erosion of the rights of the individual — some might say, may justify a restriction of the scope of application of rights, and at least necessitate a suspension of the realization of the rights of the individual — and this erosion, if it is done proportionately, is a permitted violation in our constitutional system. In the words of my colleague President Barak, in Conterm Ltd v. Minister of Finance [85], at p. 347 {71}:

‘We cannot protect human rights without infringing on human rights. A democracy is not characterized by the fact that it never violates human rights. Human rights are not a recipe for national destruction.’

84. The state has a duty to its citizens and its residents — and this is a duty of the first order — to protect their lives and security, even at the price of violating the right of some citizens to realize, within the territory of the state, their right to family life with their spouses who are enemy nationals. In a time of armed conflict a sovereign state is therefore not required to allow enemy nationals to immigrate, even if they have first-degree family members in the state. The concern, and it is a reasonable concern, is that at the crucial moment the enemy nationals will be loyal to their people and place of birth, and at the least they will be subject to various pressures — because of family and other ties — to help the enemy. This is sufficient to create a presumption that all enemy nationals are dangerous and to justify a prohibition against their entering the state. This is the rule, and it has its logic and reasons. We should add in this context that rules formulated in international law usually concern individual and exceptional cases, because naturally the citizens of enemy states do not marry each other, and in times of armed conflict they do not immigrate in their thousands from their state to the enemy state. Our case, we should remember, is completely different, since we are talking of residents of the territories who wish to immigrate to Israel in their thousands. And when we are considering the case of thousands of immigrants — and not merely a few immigrants — those concerns that gave rise to the accepted norm in international law are automatically magnified.

85. So we see that here too we are confronted by rights and interests that conflict with one another: on one side there is the right of the state not to allow residents of an enemy state to enter its territory in times of war, and on the other side there is the right of the citizen — a basic right, a constitutional right derived from human dignity — that he will be allowed to live together with his family members and to have a normal family life in Israel. The question is whether the basic right to have a family life in Israel also applies to family members when one of them is a resident of a hostile entity that is involved in an armed conflict with the State of Israel? In order to answer this question, we ought to consider closely these two values and weigh them against one other (see also para. 59, supra): the one is the strength of the right to have a family life in Israel as derived from the values that the right is supposed to express in the law; the other is the strength of the conflicting value, which in our case is the lives of citizens and residents and national security. When we place these conflicting values before us, we must clarify and weigh up to what extent the right to family life as aforesaid detracts from the values of life and security, and vice versa: to what extent do the values of life and security detract from family life. In this case, we say that recognizing the right of the citizen to include a right to bring into Israel, in a time of war, a family member who is an enemy national causes harm in two ways: first, it violates the right of the organized society in Israel to decide who will live in Israel and who will be its citizens and residents, i.e., it impairs the ability of the state to determine its identity and character; second, it harms — or at least it is likely to harm — national security.

86. Once again I placed all the values and considerations into one pot, and my conclusion is that the value of human dignity — in principle — does not give rise to a constitutional right to realize in Israel a marriage with a foreign spouse, or to bring a foreign parent into Israel, when that spouse or parent is a national of a state that is in a state of war — or a state of quasi-war — with Israel. This conclusion is implied both by an examination of the strength of the right to have a family life, and by the values and interests of the state and its residents to life and security, as well as by the conflict between the former and the latter.

As we have already said (see para. 61 above), I do not nor shall I dispute the constitutional right of an Israeli citizen to have a family life. But here too the main issue is the values and interests that conflict with the argument concerning the constitutional right of the citizen to have a family member live in Israel when that family member is a national of an entity that is involved in an armed conflict with the State of Israel (cf. para. 62, supra). We are speaking of a concern that hostile parties will enter Israel, and the state is asking us to allow it to prevent the entry of Palestinians who wish to live here. The strength of this interest is so strong in my opinion that it is capable of influencing, ab initio, the scope of the application of the right to have a family life in Israel. The state, we should recall, is merely the organization of society to live together, and the meaning of this for our purposes is that the state’s prerogative is merely an expression of the protection that Israeli citizens require even in times of peace, but particularly in times of war.

Indeed, we should not ignore the conflicting interests and values, both those of the state and those of its individuals. Human rights live and endure also in times of war, but there is no doubt that a change occurs in the process of balancing them against the interests that conflict with them, with regard to the value of human dignity, personal autonomy and human liberty. The war harms everyone: soldiers on the battlefield and citizens on the home front. The economy of the state is harmed. The realization of social goals are postponed to a later date. And when the reality changes, the balance may also change. Indeed, the nucleus of the rights will not change. The piccolo will continue to pipe its clear notes. But the remoter we are from the nucleus and the more we approach the periphery — and in our case we are speaking of the right of the citizen to bring a foreign national to live in Israel in a time of war — so the influence and strength of other elements and values will increase.

87. In summary, in times of war Israeli citizens and residents do not have a constitutional right to bring into Israel a family member who is a citizen of an entity that is involved in an armed conflict or war with the State of Israel.

Immigration by virtue of marriage and the right to family life — interim summary

88. The conclusion that we arrive at is therefore this, that the right of the individual to family life does not imply a constitutional or legal obligation that is imposed on the state to allow the foreign family member of the individual (a spouse or parent) to immigrate into the territory of the state. Such immigration — if and to the extent that it is allowed — will be allowed if the state so wishes, and in accordance with its laws. The state has no obligation to allow immigration for reasons of marriage — except in accordance with its laws — and the state may impose restrictions on immigrations into its territory for the purpose of marriage. If this is the case in general, it is certainly the case in times of war, when the persons who wish to immigrate into the state are enemy nationals.

The question of the violation of equality — the right (and duty) of a state to restrict the immigration of enemy nationals in times of war

89. We all agree (for how could we not?) that the Citizenship and Entry into Israel Law mainly harms the Arab citizens of the state. It is true that the law does not address Israeli citizens at all, and therefore it does not distinguish between Jews and Arabs, but it is also true that de facto it is Arab Israeli citizens who are harmed by the law, since it is only they — with the exception of isolated cases — who find a spouse among the residents of the territories. From the viewpoint of the end result, there is no equality between the Arab citizens of the state and the Jewish citizens of the state. Cf. Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41]. Does this inequality in the end result have any legal significance?

90. Everyone agrees that an immigration restriction should be applied democratically and equally. The state should not discriminate against one population group by preventing their foreign spouses from immigrating into the state, while at the same time allowing the foreign spouses of another population group to immigrate into it. We discussed this in Stamka v. Minister of Interior [24], where we explained that the principle of equality demands that the laws of immigration by virtue of marriage should be applied equally to Jews and non-Jews (ibid., at pp. 758-759):

‘… We do not find any justification for preferring a Jew who lives securely in his land to someone who is not a Jew, such that the former should be able to acquire citizenship for a non-Jewish spouse whereas the latter cannot. Although we agree, wholeheartedly, with the right possessed by every Jew, as such, to immigrate to Israel, with his family, we shall find it difficult to agree to a greater right being given to a Jew who is a citizen of Israel — to him, but not to the Israeli citizen who is not Jewish — to be entitled to citizenship for a non-Jew who became his spouse while he is a citizen of Israel. When we recognize the right of a Jewish citizen of Israel to obtain citizenship for his non-Jewish spouse, but at the same time we deny this right to the non-Jewish citizen, we commit a serious act of discrimination, and we have found no proper purpose in this.’

The meaning is that the citizens of Israel, whether Jews or non-Jews, have not acquired a right that their foreign spouses can immigrate into Israel. In this, they are different from Jews who are not citizens of Israel, who are entitled to have their family members immigrate to Israel (s. 4A of the Law of Return), and the absence of the right will apply equally to Jews and non-Jews. If a right is given to Israelis to have their foreign spouses immigrate to Israel, this right should be given equally to all Israelis, to Jews and non-Jews alike. Once we realize this, the question that we must ask now is whether the Citizenship and Entry into Israel Law is a law that discriminates against Arab Israelis, and whether for this reason it should be declared void as a law that violates the principle of equality. We will now consider this claim.

91. It is well known that not every inequality leads to the voidance of a legal norm, and certainly it does not lead to the voidance of a law of the Knesset. Not every distinction between persons is an improper distinction. The same is true of a violation of human dignity. A distinction that is based on relevant considerations does not violate human dignity nor does it violate the right to equality. In other words, the right to equality does not apply to every distinction but only to prohibited distinctions. Not every different treatment is discriminatory treatment. Discrimination is, it is well known, a distinction between persons or between matters for reasons that are irrelevant, but when there is a difference that is relevant, the authority may, and sometimes must, treat the persons or the matters differently. This was elucidated by President Agranat: ‘…it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality…’ (Boronovski v. Chief Rabbis [71], at p. 35). It follows from this, so President Barak told us, that: ‘In order to establish a claim of discrimination that allegedly constitutes a violation of the constitutional right to equality, one must point to the existence of an unjustified discrimination in the offending law. Discrimination between groups that is based on a relevant difference does not in itself constitute discrimination’ (HCJ 5304/02 Israel Victims of Work Accidents and Widows of Victims of Work Accidents Association v. State of Israel [139], at 141). See also: Kefar Veradim v. Minister of Finance [70], at pp. 507-508; El-Al Israel Airlines Ltd v. Danielowitz [65], at p. 761 {489}; Recanat v. National Labour Court [73], at p. 312; HCJ 6845/00 Niv v. National Labour Court [140], at p. 680. And as we have said elsewhere (Local Government Centre v. Knesset [31], at p. 502), the concept of equality — the concept of substantive equality — is a concept that is synonymous with justice and fairness; and discrimination between equals (from a substantive point of view) means an act of injustice and unfairness.

92. In our case, are Arab Israeli citizens discriminated against in comparison with Israelis who are not Arabs? Does the Citizenship and Entry into Israel Law discriminate improperly between Arab Israeli citizens and non-Arab Israeli citizens? Our answer is no. The Citizenship and Entry into Israel Law was enacted against the background of the armed conflict and state of war between Israel and the Palestinians, and therefore there is a proper and permitted distinction between persons who married foreigners, who are Palestinian ‘enemy nationals’ that are presumed to constitute a potential security risk to the residents of the state, and persons who married foreigners who are not ‘hostile nationals.’ Moreover, in times of war the state — every state in the world — may categorically prevent the immigration of enemy nationals into its territory out of a concern that their loyalty will be given to their place of birth — i.e., to the enemy — and not to the state that absorbs them. Even if in times of peace the state is accustomed to allow foreign spouses of citizens of the state to immigrate to it, in times of war the state may suspend this practice, at least in so far as concerns foreign spouses who are enemy nationals. Admittedly a citizen of the state who married an enemy national will be hurt by the state’s decision, and it is possible that he will even feel discriminated against in comparison to his neighbours who married foreign citizens who are not enemy nationals and their spouses are permitted to come to Israel. But can we seriously say that someone who married an enemy national has been discriminated against? With regard to our case we will say that as long as the armed conflict between Israel and the Palestinians continues, the state is entitled to prevent the immigration of Palestinians who are residents of the territories to Israel. This ban does indeed harm a minority group of which the vast majority are Arabs, but this harm derives from the marriage to enemy nationals who are likely to endanger the public in Israel and not from the fact that they are Arabs. The decisive factor is national security and the lives of the residents of the state, and this factor outweighs the others.

93. After realizing all of the above, we reject the claim of discrimination that the petitioners raised before us.

Immigration by virtue of the right to marry and raise a family and the principle of equality — summary

94. The right to marry and raise a family, and likewise the right to equality, are both rights that do not imply that the state has any duty — neither a constitutional duty nor a legal duty — to allow immigration to Israel by virtue of marriage. The individual — every individual — does not have a right that his foreign spouse will be allowed to immigrate to Israel. This is the law in times of peace and it is certainly the law in times of war, when the persons wishing to immigrate are members of an enemy people that is involved in an armed conflict with the state and its citizens. Israel does not therefore have any duty to allow residents of the territories who married Israeli citizens to enter Israel, and Israeli citizens who married residents of the territories do not have a constitutional right — a right that is allegedly capable of causing the voidance of a law of the Knesset — to have their foreign spouses immigrate to Israel. Admittedly, the Citizenship and Entry into Israel Law harms some of the citizens of Israel, the vast majority of whom are Arabs, that married residents of the territories and wish to realize their right to family life in Israel. But this harm is a necessary evil brought about by reality, the security reality in which we find ourselves. The State of Israel is entitled to prevent the entry of enemy nationals into its territory during an armed conflict, and in a time of war it does not have a legal obligation to allow immigration to Israel for the purpose of marriage and as a result of marriage. The citizen of the state does not have a right that in a time of war the state should allow his foreign spouse who is an enemy national to immigrate to Israel. And even if in times of peace the citizen of the state has a right vis-à-vis the state that it should allow his foreign spouse to immigrate to Israel, the state is entitled to suspend this right in a time of war.

95. Our opinion is therefore this, that the Knesset had the power to enact the Citizenship and Entry into Israel Law in its amended form. There remains, prima facie, a question as to whether it was right to enact a blanket provision of law that applies to a whole group of the population within certain ages, without any distinction between the individuals in the group, or whether the enactment of the blanket provision undermines the validity of the law, like a law that is contrary to principles in the Basic Law: Human Dignity and Liberty. The answer to this question is somewhat complex. As we have seen in our remarks above, it is possible to classify the relationship between Israel and the Palestinian Authority in two ways: one, as a relationship of armed conflict that is equivalent, for our purposes, to a state of war, and two, alternatively, or maybe additionally, as a relationship that creates serious security risks to the residents of Israel on the part of the Palestinian Authority or terror groups that operate from within it.

96. It would appear that in so far as we are speaking of the armed conflict — which is tantamount, in our opinion, to a state of war — the blanket prohibition on the entry of a certain population group into Israel may well be required by the state of the conflict. And if a blanket prohibition of the entry of enemy nationals is a proper and lawful prohibition, at a time of war or armed conflict, then a partial prohibition as we find in the law is certainly proper and lawful. The same is true according to the alternative classification, according to which the relationship between the Palestinian Authority and Israel creates serious risks to the lives of Israeli residents. This is especially the case when the security services are unable to distinguish between immigrants who constitute a danger to security and immigrants who do not constitute a danger to security.

97. In summary, the Citizenship and Entry into Israel Law harms Arab citizens of the State of Israel who wish to marry spouses who are residents of the territories, but this harm does not amount to a constitutional violation of a provision of the Basic Law: Human Dignity and Liberty. This is the case with regard to the constitutional right to family life, which is a right that does not extend to the request of an Israeli citizen to bring his foreign spouse to Israel, and this is also the case with regard to the constitutional right to equality, which is not violated since the effect of the law on Arab citizens and residents is based on relevant considerations at this time, a time of war. Now that we have said what we have said, our voyage is complete. Nonetheless, in order to avoid doubt, and on the basis of the assumption that the Citizenship and Entry into Israel Law does violate a basic right of the citizen, I would like to go on to consider whether that violation satisfies the tests of the limitations clause.

The Citizenship and Entry into Israel Law — purpose and proportionality

98. The premise for our deliberations from this point will be that the purpose underlying the Citizenship and Entry into Israel Law, and I am speaking here only of the purpose, is a proper purpose. The question is merely whether the measure determined by the law to achieve the purpose is a proper and proportionate measure. The purpose of the law is to protect the security and lives of Israeli citizens, and it is clear that this purpose is a proper purpose that befits the values of the State of Israel as a Jewish and democratic state. The State of Israel is required to contend with terror, and it is entitled — or rather it is obliged — to adopt measures that will protect the lives and security of the residents of the state. The state is entitled therefore to prevent the terror organizations from exploiting the basic rights of the individual — which in our case means the right to marry and to family life, and, in consequence, the right to live in Israel — in order to make it easier to commit acts of terror against the citizens of Israel. Everyone accepts, therefore, that in principle the state is entitled to adopt proper measures in order to prevent the foreign spouse of an Israeli citizen from coming into Israel where there is a concern that such a person will be involved in terror activity or will assist terror. The question that is being asked is simply whether the state was entitled, within the framework of the law, to impose a blanket prohibition on the residents of the area, who married Israeli citizens and are of a certain age, against entering Israel and living in it.

The limitations clause — values of the state and purpose of the law

99. Assuming that the Citizenship and Entry into Israel Law violates one of the basic rights given to the citizen in the Basic Law: Human Dignity and Liberty — although I personally doubt that this is true in our case — the question that must be asked is whether that violation satisfies the test of the limitations clause and passes it safely, or whether the violation fails the test of the limitations clause and in consequence the law is doomed — in whole or in part — to be declared void. Let us recall what the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty says:

‘Violation of rights

8.  The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.’

We are speaking of a law of the Knesset that the petitioners are seeking to have declared void, and in this respect the limitations clause provides us with several tests: the law must befit the values of the State of Israel; the law must be intended for a proper purpose; and the violation of the basic right must be to an extent that is not excessive. The petitioners raised no argument before us with regard to the first condition (the law must befit the values of the state of Israel). With regard to the condition of the proper purpose, my colleague President Barak considered this in detail, and his conclusion is that the law satisfies this requirement. I agree with my colleague’s remarks and I will find it hard to add anything to them. It is clear that the purpose of protecting the security and life of residents and citizens of the state is a proper purpose.

The limitations clause: proportionality

100. There remains one more hurdle for the Citizenship and Entry into Israel Law to overcome, and that is the proportionality hurdle; or in the language of the law, the violation of the basic right must be ‘to an extent that is not excessive.’ This test, as distinct from the first two tests, places on the agenda the measure that the law chose for achieving the proper purpose, and the question is whether this measure is a ‘proportionate’ measure. The test of proportionality is divided, as is well known, into three subtests, and now we will consider these tests one by one. See also: Ben-Atiya v. Minister of Education, Culture and Sport [91]; HCJ 6971/98 Paritzky v. Government of Israel [141], at p. 779; Oron v. Knesset Speaker [10], at p. 665; Stamka v. Minister of Interior [24], at pp. 776-778. Since my colleague the president went into detail in his analysis of these tests, we will be brief although we too could have gone into detail.

The first subtest — making the measure correspond to the purpose

101. Does the blanket prohibition against the entry of residents of the territories of certain ages into Israel constitute a proper measure for realizing the purpose of the law? Does this prohibition rationally serve the security purpose that underlies the law? My colleague the president says that the answer to this question is yes. This is also my opinion. The purpose of the law is to prevent terror organizations from receiving aid from residents of the territories who hold Israeli documentation, which allows them to enter Israel and to move freely in Israel. The following was stated in the explanatory notes to the draft Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 (Hatzaot Hok (Draft Laws) 624):

‘The temporary provision was enacted... in view of the security reality since the beginning of the armed conflict between Israel and the Palestinians, in which we have seen increasing involvement in this conflict of Palestinians that were originally residents of the territories, who have Israeli identity cards as a result of family reunification processes with persons who have Israeli citizenship or residency, and who abused their position in Israel in order to become involved in terror activity, including aiding the perpetration of suicide attacks.

The Israeli identity cards that were given to the residents of the territories as aforesaid allowed them free movement between the territories of the Palestinian Authority and Israel, and they made them a preferred target group of terror organizations for perpetrating hostile activity in general, and inside the territory of the State of Israel in particular.’

Because of their ability and readiness to aid the perpetration of terror attacks inside Israel, the residents of the territories who hold Israeli documentation became a recruitment target for the terror organizations, and the security establishment in Israel did indeed find that the efforts of the terror organizations were successful and that the involvement of residents of the territories who have Israeli identity cards in terror activities increased. We will consider this matter further in our remarks below.

Thus, when it was discovered that the residents of the territories who have Israeli identity cards by virtue of family ties were involved in terror by means of their abusing their right to move freely within Israel and between the territories and Israel; that the involvement of these persons in terror was increasing along with the progress in building the security fence which constitutes a physical obstacle to terrorists who wish to harm Israel; that the terror organizations are making great efforts to recruit into their ranks residents of the territories who have Israeli documentation, and it is possible that they also threaten the family members who are left behind; and that it is impossible to predict who will become involved in terror; it was also discovered that the restriction that the state imposed in the law on entering Israel served the purpose of the law in a rational and direct manner. Thus, the following was stated in the explanatory notes to the draft Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 (Hatzaot Hok (Draft Laws) 624):

‘… The professional assessment of the security establishment is that the temporary provision is an effective tool for reducing the free passage of residents of the territories between the areas controlled by the Authority and Israel, and for preventing the potential for a serious security risk on the part of that population.’

102. In paras. 85 and 86 of his opinion, my colleague the president examines the effect of the temporary permits to stay in Israel which the law allows — mainly for the purposes of employment — on the blanket prohibition against certain age groups staying and living in Israel, and his conclusion is that these permits do not sever the rational connection between the purpose of the law and the prohibitions therein. I accept my colleague’s conclusion. Indeed, the case of an employee who enters Israel for a limited time and subject to restrictions cannot be compared to the situation of a person who has an identity card that permits him to move freely, without hindrance, from the areas of the territories to Israel and within Israel itself.

 103. The first test of proportionality — the rational connection test — is therefore satisfied in full: the measure chosen to implement the purpose of the law corresponds from a rational viewpoint with the purpose of the law.

The second subtest — the least harmful measure

104. According to this test, the measure determined by the law, which violates a constitutional human right, is a proper measure if it is not possible to achieve the purpose of the legislation by adopting another measure that violates the human right to a lesser degree. Here we must make a clarification: when applying the second test of proportionality, the law is not compelled to choose absolutely the least harmful measure. Were we to say otherwise, then we would allow the court to dictate to the legislature which measure to choose, and in this way we would be undermining the discretion of the legislature and seriously violating the principle of the separation of powers and the decentralization of power. Moreover, in a case of this kind, the court is likely to undermine the effective implementation of the purpose of the law. The concept of proportionality for our purposes here means that the law chose a measure that falls within the spectrum of measures whose violation of a human right corresponds appropriately to the purpose of the law. The remarks of Justice Beinisch in Menahem v. Minister of Transport [11], at p. 80, are apposite to our case. She said:

‘The requirement that the legislature should choose a measure that violates the constitutional right to an extent that is not excessive in order to achieve the purpose of the law does not mean that the legislature must always choose the lowest level at the bottom of the ladder. Such a determination would make things too difficult for the legislature, which would not be able to penetrate the barrier of judicial review... There may be cases where the choice of an alternative measure that violates the constitutional right a little less is likely to lead to a significant reduction in the extent of realizing the purpose or in the extent of the benefit that will accrue from it, and therefore it will not be right to compel the legislature to adopt this measure. As a result, this court has recognized a “constitutional room to manoeuvre” which is also called the “margin of appreciation.” The limits of the constitutional room to manoeuvre are determined by the court in each case on its merits and in accordance with its circumstances, while taking into account the nature of the right that is violated and the strength of the violation thereof in relation to the nature and character of the competing rights or interests.’

See also Israel Investment Managers Association v. Minister of Finance [8], at pp. 387-389.

105. The question in our case is whether it was possible or it was not possible to achieve the purpose of preventing attacks carried out with the assistance of family members who are residents of the territories, by means of a lesser violation of the right to family life. We are mainly speaking of the creation of a mechanism of an individual check for every resident of the territories who is a spouse or parent of an Israeli citizen, instead of imposing a blanket prohibition on all the residents of the territories who are of certain ages. My colleague the president reached the conclusion that the provisions of the law satisfy the second test of proportionality, because in his words ‘… in the circumstances of the case before us, the individual check does not realize the legislative purpose to the same degree as the blanket prohibition. There is no obligation, therefore, within the framework of the least harmful measure, to stop at this level, and the legislature was entitled to choose the blanket prohibition that it chose’ (para. 89 of his opinion). Let us further point out already at this stage, by jumping ahead to some extent, that when he discusses the third test of proportionality — the benefit-damage test — my colleague reaches the conclusion that the violation engendered by the blanket prohibition is greater than the benefit that it causes; that the advantage that the law generates is significantly less than the damage that it inflicts on the right of the citizen; and consequently, the state ought to have adopted an arrangement of an individual check while increasing its effectiveness in so far as possible (paras. 91-94 of his opinion).

106. I too am of the opinion that the Citizenship and Entry into Israel Law passes the second test of proportionality, and I will add nothing to the remarks of my colleague the president. The main disagreements between my colleague and me are restricted to the third subtest of the test of proportionality — the test of benefit as compared with damage — and we will now turn to this subtest.

The third subtest — the value subtest — benefit versus damage

107. Before we enter the arena to discuss and debate rights and duties, we would like to make an introductory remark concerning nomenclature: there are three subtests in the test of proportionality, and for reasons that I do not understand the third subtest is called by the name of the test of proportionality ‘in the narrow sense.’ This name is a mystery to me. The test of proportionality ‘in the narrow sense’ is, in my opinion, actually the second subtest, since it is a test whose beginning, middle and end all concern proportionality (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 437). But the third subtest before us, the test in which we place on each pan of the scales the values that conflict with one another, the benefit values against the damage values, ought to be called the test of proportionality ‘in the value sense.’ This test is concerned with values, and therefore it should be given that name. See and cf. United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 345-347; I. Zamir, ‘Israeli Administrative Law as Compared with German Administrative Law,’ supra, at pp. 131-132.

108. In the first two subtests, my colleague President Barak and I went hand in hand, and our conclusions were similar. But this is not the case with the third subtest, a test that concerns the proper relationship or the correlation between the benefit that the law engenders and the extent of the violation of the right of the individual. My colleague does agree that the provisions of the Citizenship and Entry into Israel Law contribute to public security, but his opinion is that the violation of the right of Israeli citizens who wish to marry residents of the territories and live with them in Israel is greater and outweighs the benefit. In his words (at para. 92 of his opinion): ‘Admittedly, the blanket prohibition does provide additional security; but it is achieved at too great a price. Admittedly, the chance of increasing security by means of a blanket prohibition is not “slight and theoretical.” Notwithstanding, in comparison to the severe violation of human dignity, it is disproportionate.’ In consequence, my colleague wishes to compel the state to carry out an individual check of the spouses from the territories, a check which is supposed to reduce the violation of the rights of the citizen and reach a proportionate balance between public security and the violation of the rights. Cf. Beit Sourik Village Council v. Government of Israel [2], at pp. 840, 850-852 {297-298, 309-312}.

109. At this point I will part from my colleague and take my own path. In my opinion, an individual check of the persons included in those population groups who have a proven potential for endangering security and life may reduce the violation of the ability to have a family life in Israel, but it will not properly guarantee public security, and it will disproportionately violate the security of the individual and the public. It is not merely that there is an inherent difficulty in examining ab initio the positions and beliefs of the resident of the territories, to find out whether he supports our enemies or not; we also cannot ignore a real concern, which has been proved in the past, that the terror organizations will recruit the spouse who is a resident of the territories into its ranks only after he has been given a permit that allows him to enter Israel and to move freely in Israel. The investment of greater resources or more concentrated efforts will also not guarantee the security of Israeli residents, and the meaning of this is that cancelling the blanket prohibition in the law and replacing it with an arrangement of an individual check is likely to lead to quite a high probability of an increase in terror activities in Israel; to the killing and wounding of residents of the state; to a real and tangible weakening of the feeling of stability; and as a result of all of these to the undermining of democracy itself. In the task of balancing between a reduction of the killing, safeguarding life and guaranteeing the stability of the system of government, as compared with the damage caused to some of the citizens of Israel who wish to live with their foreign family members in Israel — and we should remember that the amendment to the law reduced the scope of the violation significantly — the benefit is, in my opinion, greater than the damage.

110. We have spoken at length about the armed conflict between Israel and the Palestinians and about the difficult reality — a difficult security reality — in which we live. We also spoke of the great difficulty that Israel has encountered in its war against the terror organizations, a difficulty that originates, inter alia, in the strong connection between the terror organizations and the Palestinian civilian population. We discussed at length the position of the Palestinian people in this dispute, the attitude of the Palestinian public, the great hostility that many Palestinians feel towards Israel and Israelis and the support of the armed conflict waged by the terror organizations among large parts of the Palestinian public. This support is often expressed by actually taking part in terror activities or aiding terror. The danger to the Israeli public, to its security and to its life is a clear and present danger, and we see evidence of this every day. Whoever lives in Israel today knows this well. The source of the danger, it should be remembered, is not merely the Palestinian Authority but — and perhaps mainly — the terror organizations and the Palestinian public in its entirety. Even if we agree that not all Palestinians wish to harm Israel, in general the Palestinian public and its members are hostile to the State of Israel. In such circumstances, an individual check of every resident of the territories who wishes to immigrate to Israel is an impractical mission — I will go further and say, an impossible mission — and even if at a particular moment it is possible to determine that a specific resident from the territories does not associate himself with the supporters of terror, who can guarantee that tomorrow or the day after, after he has received the much-desired permit, he will not change his opinion and his actions? The state says in this regard (in paras. 25 and 27 of the state’s response dated 7 February 2006) (all the emphases are in the original):

‘The forces fighting the State of Israel are not members of a regular army and they are not necessarily recognized as terror activists by the security forces; a substantial part of the Palestinian civilian population of certain ages are partners in the armed conflict, in one way or another. Because of this, and as has also been explained in detail in the past, it is not possible to predict the involvement in terror (whether it is clandestine involvement or assistance or financial support) of a resident of the Palestinian Authority, who is not recognized by the security establishment as a terror activist.

…

… The involvement of persons that have Israeli documentation since the armed conflict began, with regard to all the characteristics set out above, in aid to terror organizations and in carrying out bloody attacks inside the State of Israel indicates that many of those persons who, in the absence of concrete security intelligence against them, were granted a status in Israel by the state within the framework of applications for family reunifications, associated themselves with the Palestinian cause at one stage or another, after they entered Israel, and aided or committed murderous terror attacks.’

111. Against the background of these facts — facts that constitute a basis for our consideration and deliberation — the limitations of the individual check arise as if with a will of their own, and we discover that the security establishment has no real capacity to identify who are those residents of the territories who are likely to endanger the security of the public in Israel. Thus, for example, it is clear that the security services have difficulty in collecting intelligence — whether favourable or unfavourable — about residents of the territories who live in enemy territory. Moreover, terrorists do their best to recruit residents of the territories who have Israeli documentation, whether by means of ideological persuasion, whether by economic means or whether by putting pressure on their family members who live in the territories. Who therefore is so wise that he does not suspect that a resident of the territories may become associated with a terror organization after receiving Israeli documentation? It is clear that the security services are unable to carry out a continuous and uninterrupted check of all the residents of the territories who have received a permit to stay in Israel. In their arguments, the state explained at length the reasons that make the individual check impracticable, and we will quote some of its arguments (para. 28 of the response dated 7 February 2006; see also para. 16 of the closing arguments dated 16 December 2003):

‘The reasons that underlie the limitations of the individual check on the part of the security establishment are as follows:

a.  Intelligence gaps — in the circumstances of time and place, obviously the security establishment has intelligence gaps with regard to the activity of the residents of the territories, especially those who live in areas A and B. In these circumstances, the fact that there is no unfavourable security intelligence about a particular resident does not indicate that this person is not involved in prohibited security activity, and it cannot rule out the possibility that the lack of intelligence is a result of intelligence gaps that exist today.

b.  The risk to the security of the State of Israel can be created and realized at any time, without prior warning, since someone on behalf of whom an application for a family reunification in Israel is submitted lives in a place where terror organizations operate without hindrance, and so too do his family members and his close friends. The terror organizations can therefore, without any difficulty and at any time, make contact with a person who is requesting a status in Israel and/or with his family members or his social circle, and persuade them, either in an amicable manner or by threats, to cooperate with them. Therefore a current examination of every applicant — even were it practicable — would not be able to rule out the existence of the risk arising from giving permanent entry permits into Israel.

c.  The risk comes from anyone who can enter Israel permanently by means of Israeli documentation that makes it possible also to stay in Israel overnight, and to move lawfully throughout the state — since the general closure was tightened, and the difficulty in entering Israel was increased, the terror organizations are seeking every possible way that will help them carry out terror activities inside Israel.

     The terror organizations regard the holders of Israeli documentation and especially persons who have a strong connection to the Palestinian Authority as an attractive and very important asset, from their point of view, for aiding the terror organizations within the framework of the armed struggle. This is because of the continued existence of a strong connection with the close family and childhood friends in the territories, the continuing identification with the Palestinian cause, the extensive accessibility to the territories and to the State of Israel simultaneously, and the ability to exert pressure through the close family which is left in the territories to obtain the cooperation of the former resident of the territories. It need not be said in this context that the professional assessment of the security establishment is that in order to establish a “separation barrier” or in other words a “barrier area” or a “border area,” as well as constructing a “Jerusalem bypass road,” there may be serious future implications, in this respect, since these will increase even more the attractiveness of persons who receive the status in Israel for the various terror organizations, because of the difficulty in crossing into Israel and/or sending terrorists and weapons from the territories into Israel.

d.  The past is no indication of the future — the fact that someone was permitted in the past to enter Israel and/or that there is no current concrete security intelligence about him, cannot, in itself, predict that he does not present a future risk to national security, whether because of his identification with the armed struggle being carried out today by the Palestinian side, of which he is a part himself, or because of the fact that he cannot withstand threats against him and his close family that live in the territories that are made by the terror organizations.

     Thus, for example, it is possible to bring examples from recent months of participants in terror activity who were not regarded as persons likely to become involved in terror activity… In addition, from the viewpoint of the terror organizations, there is a preference for using someone with regard to whom the terror organization thinks that Israel has no adverse intelligence.’

112. The concerns raised by the state in its arguments are not unfounded. As we said in our remarks above, past experience has proved that residents of the territories who received a permit to stay in Israel by virtue of family ties have indeed associated themselves with terror organizations, and have made use of the permits which allowed them to move freely from the territories to Israel and within Israeli itself to carry out terror acts in Israel. In its arguments before us, the state included figures of known cases, and it appears that at least twenty-six residents of the territories — men and women, who receive a permit to stay in Israel by virtue of family ties were involved in terror or were known from intelligence sources to be involved in terror. The involvement of these residents in terror began, or at least became known to the state, only after those residents received the Israeli documentation (see para. 31 of the state’s response dated 7 February 2006):

‘Twenty-six residents of the territories who received a status in Israel as a result of a process of family reunification were involved in carrying out murderous terror attacks in Israel… Another forty-two residents of the territories who are in the process of the staged process were found, according to intelligence information, to be involved in terror activity… In all these cases, those persons received a status in Israel without it being possible to predict the security risk that they presented… obtaining a status in Israel is what allowed these residents of the territories to act as an essential link in carrying out murderous attacks that led to the deaths of dozens of innocent citizens.’

113. This is the reality in which we live. Regrettably, it has been found that residents of the territories who have a permit to stay in Israel aided terror and that their substantial aid claimed the lives of dozens of residents of the state. ‘Because of their free movement within the State of Israel and by virtue of their good knowledge of the terrain, these residents of the territories are an essential component in the infrastructure of terror and in planning and perpetrating attacks’ (para. 24 of the response dated 7 February 2006). ‘Some of the residents of the territories, who received a status in Israel by virtue of family reunifications, were involved in the perpetration of suicide attacks, whether by carrying them out themselves or by aiding them. Others were involved in carrying out car bomb attacks, kidnappings, assassinations and detonating explosive charges’ (para. 37 of the response dated 6 November 2005). ‘Their essential involvement… in the perpetration of suicide attacks led to very serious harm to national security and the safety of Israel’s citizens’ (para. 30 of the response dated 7 February 2006). Indeed, residents of the territories who have Israeli documentation by virtue of marriage were involved in at least twenty-five major attacks and attempted attacks in Israel (para. 24 of the response dated 7 February 2006), in which at least forty-five Israelis were killed and at least one hundred and twenty-four were injured (para. 17 of the closing arguments dated 16 December 2003).

114. Thus we see that the damage to the security of Israel and the security of its residents is great, and preventing that damage is not possible by means of an individual check of each of the residents of the territories who wishes to immigrate to Israel. At the same time, it is precisely the method adopted by the law that has been proved effective, in that it averts the threat presented by those population groups that according to past experience are most likely to endanger the security of the public in Israel. In other words, the measure chosen to realize the legislative purpose has proved itself by its results. It has been proved that the law, in its present format, is an effective tool for reducing security risks, increasing stability and preventing damage to the system of government itself. As we saw in the remarks cited above from the explanatory notes to Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 (Hatzaot Hok (Draft Laws) 624):

‘… The professional assessment of the security establishment is that the temporary provision is an effective tool for reducing the free passage of residents of the territories between the areas controlled by the Authority and Israel, and for preventing the potential for a serious security risk on the part of that population.’

115. There are some who claim that the blanket prohibition in the Citizenship and Entry into Israel Law constitutes a collective injury to all the Arab population in Israel because of the crimes of a few whose place of residence was in the past within the territories and who today live in Israel. We agree, of course, that a collective injury has a serious and injurious result, and a democracy ought to refrain from adopting it. But I think that there are cases where we cannot avoid it. Sometimes, the harm caused by a few persons is so evil and extreme that it may justify collective restrictions; this is especially the case where it is not possible to identify and locate those few who wish to cause harm, and the harm that can be anticipated from those people is very serious and dangerous. Indeed, the preventative measures required are commensurate with the estimated harm. With regard to our case we will say that the cumulative harm anticipated from terror attacks is very serious and destructive: people are murdered, many others are injured and hurt and the feeling of stability which is essential to the existence of a society in general and a democracy in particular is undermined. It is to be regretted that these circumstances are likely to make it necessary — in times of war like the present time — to impose restrictions that are capable of harming some of the collective of Arab Israeli citizens.

116. The benefit of the Citizenship and Entry into Israel Law in its present format has been clearly proved. The significant superiority of the blanket prohibition over the individual check has also been proved. But together with the benefit that the law engenders, there is the harm to those citizens of the state who wish to bring to Israel their family members who are residents of the territories. We do not take this harm lightly, but I have difficulty in accepting the position of my colleague the president that the weight of this harm is greater than the weight of the benefit engendered by the law in its present format. First, let us recall that in order to reduce the harm to Israeli citizens the state reduced the prohibition provided in the original law, by applying it only to population groups who were shown by past experience to present (relatively) high security risks. Thus men over the age of 35 and women over the age of 25 were excluded from the prohibition, as well as minors under the age of 14. The possibility of giving minors over the age of 14 a permit to stay in Israel was increased. In addition, a possibility was provided to give a permit to stay in Israel for temporary purposes. The figures that underlie the determination of the age limits in the law were discussed by the state in para. 37 of its response dated 6 November 2005:

‘The assessment of the security establishment is that approximately 90% of those involved in terror attacks are between the ages of 16 and 35, and also that approximately 97% of the suicide bombers are of those ages. Twenty-two residents of the territories who received a status in Israel as a result of family reunifications and who were involved in terror attacks against Israeli targets were between the ages of 18 and 35. With regard to women, the vast majority of those involved in terror attacks are between the ages of 17 and 30. It should be pointed out that in the year 2004, 36 women were involved in terror attacks as aforesaid, a number that constitutes a significant increase in comparison to the years 2002 and 2003.

It is well known that minors are also involved in the armed conflict between the Palestinians and the State of Israel. In recent years, more than 30 minors between the ages of 12 and 15 were involved in terror attacks. Of these ten minors were involved in suicide attacks. Nonetheless, it should be noted that 24 of the minors who were involved in terror attacks were between the ages of 14 and 15, seven of them between the ages of 13 and 14, and two of them were between the ages of 12 and 13.’

117. The effect of the prohibition in the law was therefore reduced to those population groups who constitute, according to the assessment of the security establishment, a relatively high potential for being security risks. Within those population groups who have a high risk potential, it is impossible to predict who will constitute and who will not constitute a risk to the state, and for this reason a blanket prohibition was imposed on all the members of those age groups mentioned in the law. At the same time, population groups that do not usually present a risk to security were excluded from the prohibition, subject to specific risks to national security (s. 3E of the law). This reduction of the blanket prohibition — so we are told by the state — is likely to reduce the scope of the population injured by the law by nearly 30 per cent, and as stated in the Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 ((Hatzaot Hok (Draft Laws) 624), at p. 625:

‘… adding the proposed qualifications to the restrictions in the temporary provision can restore approximately 28.5% of all the applications for family reunifications of residents of the territories to the list of those applications that can be processed…’

The petitioners seek in their arguments to challenge this percentage presented by the state, and to replace it with an amount of 12.3% of the applicants. This percentage is deduced by the petitioners from general statistics concerning the average marriage age in Moslem society. Without more substantiated figures, we find it difficult to accept the position of the petitioners and prefer it to the position of the state. Moreover, even if we accepted the position of the petitioners with regard to the amount by which the harm caused by the law has been reduced, we would still be unable to accept their claim that the harm caused by the (amended) law is greater than its benefit.

118. We should also address the fact that the Citizenship and Entry into Israel Law was enacted in the format of a temporary provision whose validity was determined for one year, and that it is possible to extend it, from time to time, for a period that does not exceed a year each time. This temporary nature of the law has importance. Our case law has established a rule that ‘a “permanent” law is not the same as a “temporary” law when engaging in a constitutional scrutiny of the law’ (Gaza Coast Local Council v. Knesset [6], at p. 553), and the less we declare temporary laws void, the better. See and cf. Klal Insurance Co. Ltd v. Minister of Finance [64], at p. 486; Ressler v. Knesset [128]. The reasons for this rule are pertinent in the case before us. Security reasons are reasons that change from time to time, and determining that a law is a temporary law means a reduction in the harm caused by it merely to the areas where security reasons so demand. Moreover, this temporary nature of the law requires the government and the Knesset to consider the provisions of the law and the consequences of applying them on a frequent basis, and to continue to balance from time to time the rights that have been violated against the security needs of the state.

119. The changes made in the amendment law of 5765-2005 significantly reduced the harm to the right of Israeli citizens, but my colleague President Barak is of the opinion that ‘… these amendments — as well as the temporary nature of the law — do not change the lack of proportionality to a significant degree’ (para. 92 of his opinion). The reason for this is that ‘… the vast majority of the Israeli spouses who married spouses from the territories continue to be injured even after the amendments that were recently made’ (ibid.). My opinion is different. When striking a balance as required by the third subtest in the test of proportionality — a balance between the benefit and the damage — we are required to examine, first and foremost, whether the legislature struck a reasonable balance between the needs of the individuals in the whole public and the harm to the individual. In other words, is the balance struck by the law between the conflicting interests such an improper balance that it calls upon the court to intervene in an act of legislation?

Here — like in the second subtest — the legislature has room to manoeuvre, which can be called a ‘margin of proportionality’ or a ‘margin of legislative manoeuvre,’ in which it may ‘choose, at its discretion, between a (proper) purpose and (proportionate) measures’ (Gaza Coast Local Council v. Knesset [6], at p. 551). Moreover, ‘the court will intervene only when the measure chosen significantly deviates from the boundaries of the margin, and it is clearly disproportionate’ (Menahem v. Minister of Transport [11], at p. 280). ‘We should also remember that the court will not rush to intervene and declare void a provision of statute enacted by the legislature. Even if we find that there is a preferable solution to the one chosen by the legislature, the court will not intervene unless the legislature deviated from the margin of proportionality’ (HCJ 4915/00 Communications and Productions Network Co. (1992) Ltd v. Government of Israel [142], at p. 466). The court does not replace the discretion of the legislator with its own discretion, and it does not become involved in the choice and examination of measures that were unacceptable to the legislature. The role of the court is to identity the boundaries of the scope of operation given to the legislature — under the constitution or the Basic Laws — and to examine whether a measure chosen by the legislature falls within this margin. In determining the boundaries of that scope of operation given to the legislature, the court will examine the strength of the conflicting rights and interests — rights and interests that give life to the law, on the one hand, and rights that are violated by the law, on the other — and also the circumstances and interests that are involved in the case under review. As it has been said: ‘In applying the principle of proportionality we should remember… [therefore] that the degree of strictness with the authority will be commensurate with the strength of the violated right or the strength of the violation of the right’ (Stamka v. Minister of Interior [24], at p. 777). See further HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [143], at p. 452; Israel Investment Managers Association v. Minister of Finance [8], at pp. 387-389; Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [100], at pp. 812-813.

120. In our case, we are speaking of the right to have a family life, and it is a right of great strength and strong radiation (Stamka v. Minister of Interior [24], at p. 782). Conflicting with this powerful right, there is a right that is also of great strength, namely the right of all the residents of Israel to life and security. In truth, arguments concerning ‘life’ and ‘security’ do not override others as if by magic, and we are obliged to examine and check them thoroughly and closely. But past experience has shown that we are really speaking about life, that we are concerned with life. Life and death. It is the right of the residents of the state to live. To live in security. This right of the individual to life and security is of great strength. It has chief place in the kingdom of rights of the individual, and it is clear that its great weight is capable of determining the balance between damage and benefit decisively. This right to life, which is the purpose of the legislation, is capable of telling us that the scope for making the balancing will be quite broad.

121. Moreover, we should remember that we are not speaking of a violation of the essence of the right to marry and to have family life. The citizens of the state may marry residents of the territories as they see fit. No one has deprived them of that right. No one has even deprived them of living together with their family members and children. The right to marry and have a family life in the narrow and main sense has not been violated, and a person who wishes to live with his wife and children can do so. But at this time — a time of war — for reasons of public security, the realization of the right inside the State of Israel has been restricted. The spouses can realize their right to marry and establish a family in a place that does not present any danger to the residents and citizens of Israel. They can and may realize their right to family life in Israel if they are included in the age groups permitted in the law, but they cannot have a family life in Israel if they are included in the age groups that present a considerable potential risk to the lives and security of Israeli citizens. It is clear that restricting the ability to realize a right to have family life in Israel harms the Israeli citizen, but this harm is a limited harm and it is overridden by the right of Israeli citizens and residents to life and security.

122. The right of some of the citizens of the state to realize their right to marriage and family life in Israel therefore conflicts with the right of all the residents of Israel to life and security. Let us consider the forty-five families who lost their beloved relations; let us also consider the one hundred and twenty-four families who are caring for their injured sons and daughters; let us consider these carefully and ask: is the contribution of the law not a worthy one? Is the additional security — security for life — that the blanket prohibition gives us, as compared with the individual check that is limited in its ability, not proper? Let us remember that figures from the past concern years before the security fence, and we know that the building of the security fence constitutes one of the main incentives for the terror organizations to recruit residents of the territories who hold Israeli documentation — documentation that allows them to move freely within Israeli and between the territories and Israel.

123. It will not be redundant if we mention and emphasize that the Citizenship and Entry into Israel Law — both in its original version and after it was amended — contains transition provisions that were intended to treat with some leniency those residents of the territories who began the process of obtaining a status in Israel before the law was enacted and before decision no. 1813 (of 12 May 2002) that preceded the law was made by the government. In the language of s. 4 of the law (as it is today):

‘Transition provisions

4.  Notwithstanding the provisions of this law —

 

(1) the Minister of the Interior or the area commander, as applicable, may extend the validity of a licence to live in Israel or of a permit to stay in Israel, which were held by a resident of an area prior to the commencement of this law, while taking into account, inter alia, the existence of a security impediment as stated in section 3D;

 

(2) The area commander may give a permit for a temporary stay in Israel to a resident of an area who filed an application to become a citizen under the Citizenship Law or an application for a licence to live in Israel under the Entry into Israel Law, before the first of Sivan 5762 (12 May 2002) and with regard to which, on the date of commencement of this law, no decision had been made, provided that a resident as aforesaid shall not be given citizenship, under the provisions of this paragraph, nor shall he be given a licence for temporary residency or permanent residency, under the Entry into Israel Law.

These transition provisions are capable of reducing the harm caused by the law to some Israeli citizens who married residents of the territories before the government decision, in reliance on the policy that preceded it. Thus, for example, an Israeli citizen whose spouse, a resident of the territories, was given a status in Israel before the decision of the government, will continue to live in Israel with his foreign spouse despite the provisions of the law (subject to security grounds; subsection (1)). Even his neighbour, an Israeli citizen who married a resident of the territories who submitted an application to live in Israel before the policy changed, can, in principle, continue to stay in Israel, even though he cannot be granted citizenship in Israel, by virtue of a permanent residency licence or a temporary residency licence (subsection (2)).

In its response of 7 February 2006, the state told us that at the time of the government’s decision (of 15 May 2003) there were 16,007 applications to receive a status in Israel pending. It follows that the transition provisions can resolve, if only partially, the cases of more than sixteen thousand couples, subject, of course, to security considerations. So we see that the transition provisions significantly reduce the harm to Israeli citizens who married before the change in policy and relied on the previous policy. With regard to Israeli citizens who married residents of the territories after the government’s decision or after the enactment of the Citizenship and Entry into Israel Law, they can be presumed to have known that their spouses who are residents of the territories would not be allowed to enter Israel, and their cases are not similar to the cases of persons who married before the law was enacted.

124. My opinion is therefore that the law satisfies the proportionality test in the value sense, just as it satisfies the other two proportionality tests.

Summary

125. The end result is therefore that the Citizenship and Entry into Israel Law is a law that does not contain a defect or flaw, and it follows from this that the petitions should be denied.

Provision for humanitarian cases

126. Notwithstanding the remarks we made above, we would like to add that we were disturbed by the absence of a provision designed for special humanitarian cases. In other words, the law lacks a provision for exceptions where the Minister of the Interior will be allowed — if he finds there is a special humanitarian need and when any suspicion of a security risk has been allayed — to consider granting a permit for a resident of the territories to enter Israel. This omission admittedly is not capable of resulting in the voidance of the law, but I think the state ought to consider adding an exception of this kind to the law, in one form or another. As the court said in Stamka v. Minister of Interior [24], at p. 794: ‘A policy that does not allow for exceptions is like a ball bearing machine without any lubrication oil. Just as the latter will not work and will soon explode, so too will the policy.’

Conclusion

127. My opinion is therefore that the petitions should be denied.

Postscript

128. I have studied carefully the response of my colleague President Barak to my opinion, and I certainly will not surprise anyone by saying that my opinion remains unchanged. In his main opinion my colleague explained his position well, and even if he has now honed and polished various aspects — important aspects — of his outlook, a little here and a little there, the main points remain unchanged. The same is true of the main points on which I built my opinion.

129. The disagreements between my colleague the president and me revolve around the following issues: does an Israeli citizen have a constitutional right — a right deriving from the Basic Law: Human Dignity and Liberty — to live a family life in Israel with his spouse who is not an Israeli, including with their child or children? My colleague is of the opinion that an Israeli citizen derives this right from the constitution. Unlike my colleague, I am of the opinion that this right to family life, in so far as it exists, comes from the law — from the law and not from the constitution. From these different opinions of ours we have each reached our own conclusions, and everything has been said and written at length, perhaps even at greater length than was necessary.

130. The main theoretical disagreements between my colleague and myself concern the scope of application of the concept of human dignity in the Basic Law: Human Dignity and Liberty, and the relationship between this basic right and the provisions of the limitations clause. My colleague wishes to extend the basic rights listed in the Basic Law almost endlessly, while he throws the burden of restraint on the limitations clause, whereas my opinion is that even at the first stage of determining the scope of application of the basic rights, we must take into account fundamental social factors that are capable of affecting the limits of the basic right. Thus we see that my colleague says (in para. 107 of his opinion):

‘I do not hold that basic rights should be extended in every direction. I hold that they should be given a purposive interpretation. This interpretation is neither a restrictive nor an expansive one. It is an interpretation that reflects the way in which Israeli society understands the nature of human rights, according to their constitutional structure and according to the constitutional principles provided in the Basic Law, all of which while taking into account values and essentials, and rejecting what is temporary and fleeting…’

But I will stand up and ask: what is the source of my colleague’s knowledge that the ‘understanding of Israeli society’ is that the Israeli spouse has a constitutional right — and note, a constitutional right, not merely a legal right — to have a family life in Israel with a spouse who is not Israeli, i.e., that it is a constitutional right for Israeli citizens to bring with them spouses from foreign countries and have them settle with them in Israel? You may say that my colleague thinks that this ought to be the case, and since nothing is stated to the contrary, what ought to be is also what is. But I say that fundamental principles, universal principles that are common to all peoples of the world, together with principles that are characteristic of Israel and distinguish it from all other peoples, are capable of determining boundaries also for the right of the individual to have a family life in Israel with a foreign spouse, at least in so far as a constitutional right is concerned. In our time and place, I think that it is proper that this question should be decided, according to the principles of law and the principles of the constitution, by the body that is competent to give Israel a constitution.

 131. With regard to the risks that led the Knesset to enact the Citizenship and Entry into Israel Law: even if we said — and we do say — that the existence of democracy and protecting human rights involve risks, I do not agree, and it is not in my opinion reasonable that I should be asked to agree, that we should take upon ourselves risks to life of such magnitude and with such significant chances of their materialization as in our case. Whoever destroys one life is regarded as if he has destroyed a whole world, and we know that many lives have been lost as a result of risks that the state took upon itself prior to the enactment of the Citizenship and Entry into Israel Law.

My colleague says (in para. 111 of his opinion):

‘A society that wishes to protect its democratic values and that wishes to have a democratic system of government even in times of terror and war cannot prefer the right to life in every case where it conflicts with the preservation of human rights. A democratic society is required to carry out the complex work of balancing between the conflicting values. This balance, by its very nature, includes elements of risk and elements of probability…’

With regard to these remarks of my colleague I would like to say the following: I agree that a democratic society is required to make balances and to consider risks and the probabilities that risks will materialize. But this is exactly what happened in our case, when the Knesset — the legislature — was required to carry out the complex task of balancing between the conflicting values, a balance which took into account risk factors and probability factors, which in the opinion of the security establishment are not at all negligible. The Knesset — the legislature of the State of Israel — therefore struck a balance, as it is authorized to do, between the right to life and other rights, and after it examined risks and probabilities, it reached the formula set out in the law and determined who would be allowed to enter Israel, notwithstanding the risk and probability that residents of the state would be harmed, and who would be prevented from coming into Israel because the probability that he would harm residents was too high. This is what the Knesset decided, and I do not think that we ought to overturn its decision.

Moreover, the ‘right to life’ is so exalted that in the task of balancing and considering risks it has a very great weight. This is certainly the case where the lives of many are at risk, and the harm to life can undermine the feeling of stability and security in Israel. When we weigh the proven risks to life against other rights — in our case the (alleged) right of an Israeli to have a family life in Israel with a foreign spouse — the latter right will prevail only if the violation thereof is a very serious and weighty one while the probability of an injury to life is insignificant. This is not the case here.

132. With regard to fixing a minimum age of 35 for a man and 25 for a woman in order to grant a permit to enter Israel subject to an individual check, my colleague says (in para. 112):

‘Indeed, if an individual check is proper, from the viewpoint of the risks that should be taken in our defensive democracy, when the husband reaches 35 and the wife reaches 25, why does it become improper, from the viewpoint of the risks, when they have not yet reached these ages?’

And further on:

‘…were we to place before us human life only, we would be obliged to reach the conclusion that whatever the age of the foreign spouses, a blanket prohibition should be applied to them; we would also be liable to determine that family reunifications should not be allowed, irrespective of the question of when the application was filed; we would also be liable to determine that workers should not be allowed at all to enter from the territories. But this is not what the Citizenship and Entry into Israel Law provides. If the state was prepared to take the risks to human life which its policy — that refrains from a blanket prohibition and is satisfied with an individual check — causes with regard to spouses over the ages of 35 and 25, and if the state was prepared to take the risks of giving entry permits to spouses who filed their application before the effective date, and if the state was prepared to take the risks in allowing workers from the territories to enter Israel and is satisfied with an individual check, it is a sign that the risk presented by being satisfied with an individual check is not so large that it can justify the serious violation to the family life of the Israeli spouses.’

I dispute this line of argument, since it is always possible to improve the proportionality of the violation with the argument that determining sweeping boundaries makes the violation of the right too broad. Thus, for example, we could ask, in the manner of my colleague: if the state is prepared to take upon itself risks to life by allowing driving at a speed of 90 kilometres per hour, why should it not determine a limit of 91 kph? 92? And so on. The same is true of other matters, such as the statute of limitations, the age of majority, etc.. ‘But this is the nature of times, measures, weights, distances and similar measurable concepts, that in determining their limits the boundaries are somewhat arbitrary. This is well known’ (CrimA 3439/04 Bazak (Bouzaglo) v. Attorney-General [144], at para. 24 of the judgment). Indeed, the determination of measurable concepts is a part of the experience of the law, and the question is merely one of reasonableness in the circumstances of one case or another, and in the case before us, mainly also questions of risks and probabilities. With regard to our case, we have received a thorough explanation as to why the ages of 25 and 35 were chosen for the entry of foreign spouses into Israel, and these matters have been explained at length above (see para. 116 supra). In any case, if the state is prepared to take certain risks on itself, are we to come with an argument and ask why it did not take on itself greater risks? With regard to all this, the Knesset and the government thought, in accordance with the advice of the security service, that Israeli democracy ought to be prepared to take upon itself some risks to human life in order to protect the basic rights of the individual, whereas it should not take upon itself other risks to human life. Does the court — after considering, inter alia, the principle of the separation of powers — have a proper reason for overturning this decision of the law? The answer to this question is, in my opinion, no.

133. Meanwhile I have received the opinions of my colleagues Justice Procaccia and Justice Joubran, and I would like to devote a few remarks to these opinions.

134. My colleagues, each in his own way and style, hint in their opinions that it is possible that the purpose of the law was not a security one, or at least was not only a security one; that at the time of enacting the law, it is possible that the legislature also considered the purpose of demography (see para. 14 of the opinion of Justice Procaccia and para. 24 of the opinion of Justice Joubran). My colleague Justice Joubran does not draw any conclusion from these remarks, whereas my colleague Justice Procaccia is of the opinion that ‘even if there is nothing [in the demographic consideration] to reduce the credibility of the security consideration, it is possible that it reflects to some extent on its weight and strength.’

135. This position of my colleagues was rejected utterly in the opinion of my colleague the president and in my opinion, and even now I have difficulty accepting the position of my colleagues. The draft law, the provisions of the law, the amendments to the law, and in addition to all of these — the arguments of the state before us, all of these point to the fact that the purpose of the laws is a security purpose. The remarks uttered in the Knesset at the time of the enactment of the law cannot change this purpose. Moreover, the demographic issue was not considered at all by us and we were in any event not required to decide it. For what reason, therefore, do my colleagues mention this matter in their opinion? What reason was there for my colleagues to consider the matter in a non-committal way and cast a shadow on our deliberations? And if we did not hear full argument on the question of the demographic factor, how can we know what was the weight of this consideration among all the considerations? Indeed, if one day the Knesset enacts an immigration law which has as one of its purposes the preservation of the Jewish majority in the State of Israel, it is possible that the court will be required to consider in depth the demographic factor. And the court will consider the matter and decide it. But that is not the position in this case, since we were not requested to consider that issue.

136. Moreover, my colleague Justice Procaccia discusses at length the ruling of the Supreme Court of the United States in Korematsu v. United States [185], and after she describes the ruling in that case as a ruling ‘that is considered by many one of the darkest episodes in the constitutional history of western countries,’ she goes on to say that ‘the wind that blows in the background of the constitutional approach that was applied there by the majority opinion is not foreign to the arguments that were heard from the state in the case before us,’ and that ‘we must take care not to make similar mistakes.’ We should remember that the arguments of the state were accepted by me and also by some of my colleagues as well. Human history provides much scope for someone who wishes making comparisons, some of which are appropriate and some inappropriate. But as a court we are obliged to learn from history and to refrain from the mistakes of the past. But in this learning we are required to be somewhat particular to consider the circumstances of each case on its merits, lest we fail to see the truth and the complex reality of life before us. With regard to our case, the distance between that difficult and sad historical episode and our case is a distance of light years, and in this context I accept the position of my colleague Justice Naor. It is sufficient if we mention that Korematsu v. United States [185] concerned the denial of liberty to more than one hundred thousand citizens of the United States without it being proved that they presented any security risks. Our case, we should remember, concerns preventing the entry of foreign nationals when security risks have been proved and many Israeli citizens have been murdered and injured. The difference between the cases is so deafening that there is no need to explain it further.

 

 

Justice D. Beinisch

1.    The decision in the petitions before us is one of the most difficult decisions that have been brought before us in recent years. In their extensive opinions, my colleagues President A. Barak and Vice-President Emeritus M. Cheshin follow different paths in the process of the constitutional scrutiny of the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter: the law or the Citizenship and Entry into Israel Law), and each of them reaches, according to his approach, a different terminus at the end of the journey.

2.    I will say already at the beginning that with regard to the method of the constitutional scrutiny of the law, I do not see any route other than the one outlined and detailed by President Barak in his opinion, with all the stages of this route. In order to clarify my opinion, I will tread again the path of the legal progression as briefly as possible. In the first stage of the constitutional scrutiny, the existence of the right to family life is examined from the viewpoint of the Basic Law: Human Dignity and Liberty. The question that is asked at this stage is whether there indeed exists in our legal system a basic right to family life as a part of the right to human dignity. After we have recognized the existence of the right, which was already recognized in our case law in a series of decisions, we march on to the second stage of the constitutional scrutiny, in which the violation caused by the law, which is the subject of the petition, to the protected right of the Israeli citizen, is scrutinized in accordance with the criteria of the limitations clause.

My conclusion with regard to the outcome that is implied by following this path is that the law, in its present format, with its all-embracing and comprehensive scope, cannot stand because of the disproportionate violation therein of the right to family life and because of the violation of the right to equality.

In reaching the aforesaid legal conclusion, we have not ignored the difficult struggle of the State of Israel against terror that knows no bounds. As judges and as citizens of the state, we live in the very heart of the reality and the difficult experience of terror, and we do not close our eyes to this reality, even for a moment. We wish to protect the democratic values of the State of Israel in the light of the reality with which the state is contending, not by ignoring it.

3.    In the petitions before us, we are required to examine whether the Citizenship and Entry into Israel Law unlawfully violates the right of Israeli citizens who wish to have a family life with a foreign spouse who is a resident of the territories. It should first be said that I agree with the premise of Justice Cheshin in his opinion that every state is entitled to restrict and regulate the laws of immigration into the state and even spouses of citizens of the State of Israel do not have an automatic right to immigrate to Israel and to receive a status by virtue of marriage. It would appear that none of us questions the fact that the key to giving a status to foreigners in Israel is held by the state and not by any of its citizens. Notwithstanding, our case law has already in the past recognized the right of the citizen that his application to be reunited in Israel with his foreign spouse and to have a family life with his spouse will be examined and considered favourably in the absence of any security, criminal or other impediment. I do not see any conflict between the aforesaid premise and the conclusion that we have reached with regard to the constitutionality of the law that has come before us for judicial review. The law is not based on the immigration policy of the State of Israel, nor on its interest and ability to absorb foreigners, but on its security needs alone. The purpose of the law, as made clear to us also in the extensive arguments of counsel for the state, is based on a security need, at this time, to prevent a risk arising, according to the state, from the entry into Israel of residents of the territories, including those with whom their Israeli spouses wish to have a family life. The law is based on a general and blanket assumption that the entry of Palestinian spouses into Israel and the possibility that they will be given a status in Israel presents the state with a security danger. Therefore, the law provides that the entry of spouses from the territories should be prohibited even without an individual check as to whether such a risk exists and even without an examination of the potential risk in a concrete manner. The question before us is, therefore, whether the provisions of the law that were enacted on the basis of this assumption satisfy the test of constitutionality, or whether they involve a disproportionate violation of human rights, which does not satisfy constitutional scrutiny.

4.    In view of the security purpose of the law, it would appear that once again this court is required to consider what is the proper point of balance between the clear security interest of protecting the lives of Israeli citizens and residents and the protection of human rights. An examination of the proper balance between these two poles is a difficult task to which this court has become accustomed throughout the years of its existence. Since the founding of the state, the organs of state and the government have been faced with the need to protect the security of the state and its citizens, a need which sometimes requires a violation of basic human rights in order to provide security and the protection of life. For years our case law has contended with the conflict between these two poles and dealt with it successfully. This tension has increased in recent years for reasons arising from the difficult security position, on the one hand, and from reasons based on the enshrining of basic human rights as constitutional super-legislative rights, on the other. But the strength of the tension cannot exempt us from the need to exercise our judicial review and examine the constitutionality of the law even when the factual position is complex.

Indeed, since September 2000 Israel has been subject to a cruel barrage of terrorism that has claimed a heavy price in blood. This terrorism has not passed by innocent citizens, families, women and children, the elderly and the young, and it has claimed many victims. The horrors of terrorism still endanger human life in Israel and hover like a heavy shadow at all times and in every place. With this fact in mind, we have not flinched from examining and deciding questions concerning the proper balance and deciding the proportionality of measures adopted by Israel in its struggle against terror, including the interrogation methods of the General Security Service, the legality of arrests and conditions of arrest, assigning a place of residence to families of terrorists, building the security fence and many other matters. All our decisions are founded on the basic outlook that human rights exist in times of war as in times of peace. The proper balancing point for protecting them is what moves and changes in times of war and combat.

5.    As stated, an additional difficulty when making our decision derives from the fact that the basic rights are today enshrined in the Basic Law: Human Dignity and Liberty, and our judicial review in the matter before us extends not only to the acts of the government but also to the legislation of the Knesset. The boundaries of this review are of course restricted only to cases where the legislature has violated a right protected in the Basic Law and that is why the question whether the right to have a family life is indeed included among these rights, as a derivative of the right to dignity, is a central one. In exercising the judicial review of the legislation of the Knesset, we are taking into account the proper restraint and caution that we are obliged to adopt with regard to the legislation of the Knesset. Since the law was enacted as a temporary provision, we waited several times to see whether, when the validity of the law expired, its extension or format would be reconsidered, if and when it was renewed. We expected that the legislature would determine a new balancing point, even if it would decide again to leave the law restricting the entry of spouses of Israelis in force. The law was indeed extended, and it was also amended recently on 1 August 2005 in such a way that the approach towards residents of the territories over the age of 35 for men and 25 for women was changed. Unfortunately, the aforesaid amendment was insufficient to spare us the need to exercise our judicial review. The basic format of the law remained as it was before: general, sweeping and without a mechanism for conducting a specific check on an individual basis, and the possibility that the validity of the law would be extended once again was not removed. In these circumstances, the decision was left to us, and now that we have set out the principles that form the framework of our deliberations, we must examine the question requiring a determination while taking these principles into account.

6.    The disagreement between my colleagues concerns, first and foremost, the fundamental question whether the provisions of the Citizenship and Entry into Israel Law violate a protected basic right. As stated, only a determination that this is the case will lead us to proceed along the path of constitutional scrutiny of the law, in accordance with the limitations clause.

It seems to me that there is no real disagreement as to the actual existence of the right to have a family life in its main and limited sense of the basic right of a person to choose his partner in life and realize the existence of the family unit. The question is, of course, whether this right is derived from the right to human dignity. In this respect, we have already adopted in the past the position that the right to marry and have a family life is a basic right of the Israeli citizen which is derived from the right to dignity. Since President Barak set out in his opinion a summary of this position, I would like, merely as a reminder, to refer to Stamka v. Minister of Interior [24] and the remarks made there by Justice Cheshin at page 787 of the judgment, and also to the remarks that I made in State of Israel v. Oren [25], at para. 11 of the judgment, as well as the remarks made in CA 7155/96 A v. Attorney-General [50], at p. 175. As stated, I agree with the comprehensive legal analysis of the president in this matter.

As we see from the president’s opinion, and from the position of our case law until now, even if not all aspects of the right to family are included within the framework of human dignity, the right to realize the autonomy of free will by establishing a family unit in accordance with individual choice and realizing it by living together is derived from human dignity and shared by every Israeli citizen. Thus I accept that the right of an Israeli spouse to establish a family unit is implied also by the implementation of the principle of equality between him and other Israeli couples with regard to whom we have determined in the past that the protection of their right to a family unit is derived from their right to human dignity.

7.    The basic human right to chose a spouse and to establish a family unit with that spouse in our country is a part of his dignity and the essence of his personality, and this right is seriously violated in the provisions of the Citizenship and Entry into Israel Law. The blanket prohibition denies Arab Israeli citizens their right to have a family life in Israel with a resident of the territories, whether the spouse presents a security risk or not. This is the disproportionate violation of human rights. Moreover, the violation is a sweeping violation of a whole population group, without any distinction between its individual members. The persons wishing to marry Palestinians as a rule come from the Arab population in the State of Israel. The law therefore discriminates between the rights of Arab citizens of the state to establish a family unit in Israel with a foreign spouse and the right of other Israelis to establish a family unit with a foreign spouse. Even according to the outlook that regards the value of equality as not being a part of human dignity in all of its aspects, the discrimination that applies to the Arab population in its entirety, merely because they belong to that population group in Israel, is certainly discrimination that is clearly included in the nucleus of human dignity. It should be noted that the existence of the right given to the Israeli citizen to have a family life in Israel does not necessarily give the foreign spouse a right to receive a status in Israel. The right is the right of the Israeli spouse, and the State of Israel may determine in its laws strict criteria for examining the foreign spouse before it grants his request for a status in Israel. It should be emphasized that the examination of the foreign spouse should be carried out by considering the rights of the Israeli spouse, on the one hand, and the public interest adapted to the concrete circumstances that must be decided by the authority, on the other.

8.    It is self-evident that even when we have said that the basic right of Arab citizens of the State of Israel has been violated, by preventing the entry into Israel of their spouses who are residents of the territories, we have not said that the law is unconstitutional. The human right to have a family life, like other rights, is not an absolute right. The determination that there is a violation of a protected basic human right is only the starting point for a deliberation as to the constitutionality of the law, and it is followed by the process of scrutiny in accordance with the limitations clause. In this respect also I accept the scrutiny carried out by President Barak in his opinion and I also accept his conclusion that the violation in the law is disproportionate, according to the third proportionality subtest and for the reasons that he gives.

Indeed, none of us disputes the proper purpose of the law. There is also no doubt that the State of Israel is compelled to take harmful measures in order to protect the lives of its residents against the cruel and unrestrained terror with which it is contending. Similarly, there is without doubt a rational connection between preventing the entry of Palestinians who are residents of the territories into Israel and achieving the purpose of additional security for the residents of the State of Israel. Moreover, there is also no doubt that the blanket prohibition of the entry of Palestinian spouses into Israel is capable of providing additional security to Israeli citizens to a greater extent that a prohibition involving an individual check of person requesting family reunifications which naturally involves taking risks. If, notwithstanding this, I am of the opinion that the taking of risks is an insufficient reason for leaving the blanket prohibition intact, this is because the basic principles of our democratic legal system are built on finding proper balances between the protection of the public interest and the protection of human rights, and the violation of the basic right in the case before us is disproportionate, in view of the character and scope of the risk, as we discovered from the figures submitted to us for this purpose.

9.    The protection of life is, of course, the protection of the most important basic human right. This supreme value gives rise to the important status of the security interest, which we are charged with giving its full weight. This has been the case in the Israeli reality throughout all the years of the state’s existence and this is certainly the case in a time of a war against terror. Regrettably, it appears that the conflict between the value of security and the extent of the violation of human rights in order to maintain security will be with us for many years to come. It is precisely for this reason that we must be careful to balance violations of rights against security needs properly and proportionately. A system of government that is based on democratic values cannot allow itself to adopt measures that will give the citizens of the state absolute security. A reality of absolute security does not exist in Israel or in any other country. Therefore an enlightened and balanced decision is required with regard to the ability of the state to take upon itself certain risks in order to protect human rights.

10. The Citizenship and Entry into Israel Law itself provides a framework of taking risks and it is right that it should do so. Taking such a risk exists for example in s. 3 in the amended wording of the law, which authorized the Minister of the Interior to approve, at his discretion, an application of a resident of the territories to receive a permit to stay in Israel in order to prevent the separation of spouses, when the resident of the area is a man who is more than 35 years of age or a woman who is more than 25 years of age. This is of course taking a certain risk, and therefore even giving such a permit is contingent upon the discretion of the minister and an individual check. This is also the case with regard to entry permits given for the purposes of work or visits. I am also prepared to accept the argument of the state that the level of risk presented by a person with a status in Israel is, as a rule, higher than the level of risk presented by a person who enters Israel with a temporary permit in order to work. But all of these involve, of course, a calculated risk that Israeli society can take upon itself.

11. During the hearing of the petitions, we were given detailed figures that show the existence of a potential risk in giving a possibility to residents of the territories to receive a status in Israel under the Entry into Israel Law or under the Citizenship Law. It should be emphasized that the figures presented to us indicate a very small — negligible — percentage of the spouses who abused their status in Israel in order to become involved in terror activity. These figures do not put us in the position of the need to decide upon a direct conflict between the risk to life and the violation of the right to live in dignity by realizing the right to have a family. When there is a direct confrontation and there is a concrete risk to security and life, the public interest indeed overrides protected human rights, and the same is the case where there is a concrete likelihood of a risk to life. But the aforesaid likelihood must be more concrete that the mere fact that the applicant for the entry permit is a Palestinian who is a resident of the territories. Not carrying out an individual check and determining a blanket prohibition gives too wide a margin to the value of security without properly confronting it with the values and rights that conflict with it. In my opinion, any permit given to a foreigner to enter Israel for family reunification with his Israeli spouse, whether the citizen is Jewish or Arab, is likely to involve a potential risk to some degree. But there are certain levels of risk which Israeli society is prepared to take and with which it is prepared to contend, by adopting security measures. There is no doubt that in the current security situation permitting the entry of residents of the territories for the purpose of family reunifications with their Israeli spouses involves a greater risk than permitting the entry of other foreigners. Therefore, a strict and detailed check must be made of every application submitted by an Israeli to realize his right to have a family life with a resident of the territories. On the other hand, a blanket prohibition against the possibility of entering Israel from the territories that prevents the entry of a spouse of an Israeli citizen, without providing any possibility of an individual check, no matter how strict, does not give proper weight to the correlation between the degree of the security risk and the extent of the violation of human rights, a correlation that is required by the democratic principles of our system.

12. Our life in Israel follows the pattern of the life of a civilized society, which aims to live like a free society that respects human rights and maintains an equality of rights, even in times of emergency and war, which we have endured since the founding of the state. Of this we have been proud all these years. If we do not insist that the image of our society is that of a society that respects the rights of its individuals in times of war, we will pay a heavy price in times of calm.

Every day the citizens of Israel take risks with regard to national security, public order and personal security, albeit to a limited degree. Thus, we conduct ourselves in such a way that we do not violate the rights of suspects and the human rights of persons who may serve as a potential focus for a risk to society without a proper factual and legal basis. This is the secret of the power of Israel as a democracy that seeks to maintain a just society that respects human rights even in difficult conditions. Carrying out an individual check on the scale required in order to consider the application for family reunifications does not constitute a significant and exceptional risk, even though there is a basis to the state’s claim that assembling intelligence and carrying out an individual check, in the conditions that prevail today, is likely to present not a few practical difficulties. It is possible to find solutions to these difficulties and even to take them into account when determining the check procedure. Nonetheless, we cannot dispense with the duty of carrying out checks merely because it is complex and involves effort. There is a price to protecting rights and in the circumstances of our case we are speaking of a proper price.

13. In view of the conclusion that we have reached, according to which the blanket prohibition that was determined in the Citizenship and Entry into Israel Law violates human rights disproportionately and therefore does not satisfy the conditions of constitutionality, we must ask what is the remedy that is required by this determination. There is no doubt that the legislature was aware of the problematic nature of the law and for this reason the law was enacted as a temporary measure and was even amended by introducing various concessions that were intended to make it more flexible, even though we have not found that these concessions allow the law to overcome the constitutional hurdle. The validity of the law will expire soon and therefore I see no need for us to give any relief beyond a declaration that this law in its current format is unconstitutional and therefore void.

We do not know whether the government intends to propose an extension of the law to the legislature. It is clear that should there be new legislation, it should contain a proper balance between the security need and the extent of the permitted violation of the right to have a family life. Within the framework of my opinion, I do not see fit to propose criteria that the legislature should adopt in order to make the new law constitutional. I should also add that I too agree that should the government require a limited period of time, which should not exceed six months, in order to prepare for new legislation in the spirit of our judgment, it will be given a possibility of a limited and single extension of the existing law, which will be like a period of suspension for the law that we have declared to be void.

 

 

Justice S. Joubran

I agree with the opinion of my colleague President A. Barak, according to which the petitions should be granted. Nonetheless, because of the seriousness of the question before us, I would like to add some remarks on this issue, in so far as the scope of the right to family life and the right of equality are concerned, and with regard to the violation to these rights that results from the Citizenship and Entry into Israel Law (Temporary Measure), 5763-2003 (hereafter — ‘the law’).

The right to family life

1.    It is the nature of man, literally the nature of his creation, to seek for himself a partner with whom he will live his life and with whom he will establish his family. This has been the case throughout the ages and this is the case today, notwithstanding many changes that have occurred to human customs and the human family. Both in the past and also today it can be said that ‘it is not good for man to be alone’ (Genesis 2, 18 [245]), and we recognize the strong desire of man to find a ‘help mate’, so that their fate may be joined.

2.    So much has been written about the search of man for his ‘help mate,’ the meaning of the relationship between him and the object of his love, that it may well seem that most of human creativity is devoted to the study of this relationship. It would appear that the remarks of the ancient comic dramatist Aristophanes concerning this relationship, which are quoted by Plato, are apposite:

φίλοι γὰρ γενόμενοι καὶ διαλλαγέντες τῷ θεῷ ἐξευρήσομέν τε καὶ ἐντευξόμεθα τοῖς παιδικοῖς τοῖς ἡμετέροις αὐτῶν, ὁ τῶν νῦν ὀλίγοι ποιοῦσι… λέγω δὲ οὖν ἐγωγε καθ’ ἁπάντων καὶ ἀνδρῶν καὶ γυναικῶν, ὅτι οὗτως ἂν ἡμῶν τὸ γένος εὔδαιμον γένοιτο, εἰ ἐκτελέσαιμεν τὸν ἔρωτα καὶ τῶν παιδικῶν τῶν αὑτοῦ ἕκαστος τύχοι εἰς τὴν ἀρχαίαν ἀπελθὼν φύσιν. εἰ δὲ τοῦτο ἀριστον, ἀναγκαῖον καὶ τῶν νῦν παρόντων τὸ τούτου ἐγγυτάτω ἀριστον εἶναι: τοῦτο δ’ ἐστὶ παιδικῶν τυχεῖν κατὰ νοῦν αὐτῷ πεφυκότων.

‘For if we become friends of the god and are reconciled with him, we shall find and discover our own true beloveds, which few do at present… I am speaking of everyone, both men and women, when I say that our race will be happy, if we achieve love and each our own beloved, thus returning to our original nature. If this is best, the next best is to be as close to it as present circumstances allow: and that is to find a congenial object of our love’ (Plato, Symposium, 193b-193d, translated by the editor).

3.    In searching for a spouse, in living together with him, in creating a family, a person realizes himself, shapes his identity, builds a haven and a shield against the world. It would appear that especially in our turbulent and complex world, there are few choices in which a person realizes his free will as much as a the choice of the person with whom he will share his life.

4.    This nature of man is reflected in the world of law, in the form of establishing the human right to have a family life as a basic right, which is protected against violation. Thus, the Universal Declaration of Human Rights, 1948, declares the family to be the basic unit of society and speaks of the need to protect it:

‘Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) ….

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

(Universal Declaration of Human Rights, 1948)

Following on from this declaration, the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, provides as follows:

‘Article 8.

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

(European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950)

Similarly, the International Covenant on Economic, Social and Cultural Rights, 1966, which Israel ratified in 1991, provides:

‘Article 10.

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children…

(International Covenant on Economic, Social and Cultural Rights, 1966)

Thus the countries that are parties to the Convention on the Rights of the Child, 1989, including Israel, declare themselves to be:

‘Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…’

(Convention on the Rights of the Child, 1989).

Similarly, the International Covenant on Civil and Political Rights, 1966, to which Israel is a signatory, provides the following:

‘Article 23.

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

…’

(International Covenant on Civil and Political Rights, 1966).

5.    We can also learn about the human right to have a family life from the law of other countries, which have recognized the duty of the state to refrain from intervening and harming a person’s family life. Thus, for example, the Supreme Court of the United States declared prohibitions against mixed marriages between whites and blacks, that were provided in the laws of several states, to be void, saying that:

‘The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)’ (Loving v. Virginia [188]; see also Griswold v. Connecticut [187]).

So too the Court of Appeal in England has said, with regard to a delay in the right of a person under arrest to marry someone who was supposed to be a witness in his trial, that:

‘The right to marry has always been a right recognised by the laws of this country long before the Human Rights Act 1998 came into force. The right of course is also enshrined in art. 12 of the convention’ (R (on the application of the Crown Prosecution Service) v. Registrar General of Births, Deaths and Marriages [226]).

6.    The right to family life is a right that has also been recognized in Israeli law as one of the basic human rights, which the organs of state must refrain from violating without a proper reason. Thus, in a large number of cases, this court has addressed the need to preserve family autonomy and refrain, in so far as possible, from intervening in it. Thus, with regard to the relationship between parents and their children, it was held in CA 232/85 A v. Attorney-General [58], at p. 17, that ‘in the eyes of the court, the basic unit is the natural family’ (and see also CA 7155/96 A v. Attorney-General [50], at p. 175); likewise, with regard to the right to marry and to have a family, my colleague Justice M. Cheshin held in Stamka v. Minister of Interior [24], at p. 782, that:

‘Our case, we should remember, concerns a basic right of the individual — every individual — to marry and establish a family. We need not mention that this right has been recognized in international conventions that are accepted by everyone; see art. 16(1) of the Universal Declaration of Human Rights, 1948; art. 23(2) of the International Covenant on Civil and Political Rights, 1966. For more concerning the right, see A. Rubinstein, ‘The Right to Marry,’ 3 Tel-Aviv University Law Review (Iyyunei Mishpat) (1973) 433; I. Fahrenhorst, ‘Family Law as Shaped by Human Rights,’ 12 T.A. University Studies in Law (1994) 33.’

7.    It would appear that in our time there are few choices in which a person realizes his free will as much as his choice of the person with whom he will share his life, establish his family and raise his children. In choosing a spouse, in entering into a bond of marriage with that spouse, a person expresses his personality and realizes one of the main elements of his personal autonomy. In establishing his family, a person shapes the way in which he lives his life and builds his private world. Therefore, in protecting the right to family life, the law protects the most basic freedom of the citizen to live his life as an autonomous person, who is free to make his choices.

In a similar spirit, the Supreme Court of the United States has held that:

‘When a city undertakes such intrusive regulation of the family… the usual judicial deference to the legislature is inappropriate. “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 -640 (1974). A host of cases… have consistently acknowledged a “private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944).’ (Moore v. East Cleveland [206], at p. 499).

Likewise, the European Court of Human Rights has held, with regard to the application of art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, that:

‘…the Court considers that the decision-making process concerning both the question of the applicant’s expulsion and the question of access did not afford the requisite protection of the applicant’s interests as safeguarded by Article 8. The interference with the applicant’s right under this provision was, therefore, not necessary in a democratic society’ (Ciliz v. Netherlands [232]).

And in the same respect, the Court of Appeals in England has also held that:

‘There is no evidence that the trust ever recognised, much less addressed, the interference with the appellant’s art 8 rights. In none of the documents generated by the trust's consideration of her case can any reference to art 8 be found. Mr Toner claims that what the trust officers were embarked upon in considering Mrs Connor’s case was “in essence” an art 8 exercise. We cannot accept that argument. The consideration of whether an interference with a convention right can be justified involves quite a different approach from an assessment at large of what is best for the person affected.’ (Re Connor, an Application for Judicial Review [227]).

8.    Accordingly, any violation of the right of a person to family life is a violation of his liberty and dignity as a human being, rights that are enshrined in the Basic Law: Human Dignity and Liberty. The significance of this is that the right to family life and marriage should be regarded as a constitutional right that is protected in its entirety by the Basic Law.

9.    Living together under one roof lies at the heart of the constitutional right to family life and marriage. In extensive and consistent case law, not only has this court regarded living together as a central component of family life and marriage, but it has even gone so far as to equate living together with having a conjugal relationship, so that it has held that by realizing the decision to have a relationship of living together, the couple create a bond of ‘recognized partners,’ which even without the formal act of marriage is often capable of serving as an equivalent of the marriage bond itself. As this court said in State of Israel v. Oren [25]:

‘According to case law, the two main components requiring proof in order for persons to be considered recognized partners are living together as man and wife and having a joint household:

“There are two elements here: a conjugal life as man and wife and having a joint household. The first element is made up of intimacy like between a husband and a wife, founded on the same relationship of affection and love, devotion and loyalty, which shows that they have joined their fates together…

The second element is having a joint household. Not merely a joint household for reasons of personal need, convenience, financial viability or an objective arrangement, but a natural consequence of the joint family life, as is the custom and accepted practice between a husband and wife who cling to one another with a joining of fates…” (CA 621/69 Nissim v. Euster [145], at p. 619). See also CA 79/83 Attorney-General v. Shukran [146], at p. 693; CA 6434/00 Danino v. Mena [147], at p. 691).

It should be noted that these remarks were made with regard to the interpretation of the provision in s. 55 of the Inheritance Law, 5725-1965, which does not make use of the concept of “recognized partners,” but addresses the inheritance rights of partners “who live a family life in a joint household but are not married to one another,” but the court made it clear in Nissim v. Euster that there is no practical difference between this definition and the accepted concept of “recognized partners” (ibid., at p. 621).’

This approach concerning the centrality of living together as a part of family life can also be seen in comparative law. Thus, for example, the Constitutional Court of South Africa has said that:

‘A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honor that obligation would also constitute a limitation of the right to dignity.’ (Dawood v. The Minister of Home Affairs [242]).

And similarly the Supreme Court of the United States has also held that:

‘Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra, 321 U.S. at 166. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.’ (Moore v. East Cleveland [206], at p. 499).

10. Thus we see that living together is not merely a characteristic that lies on the periphery of the right to family life but one of the most significant elements of this right, if not the most significant. Consequently, the violation of a person’s ability to live together with his spouse is in fact a violation of the essence of family life; depriving a person of his ability to have a family life in Israel with his spouse is equivalent to denying his right to family life in Israel. This violation goes to the heart of the essence of a human being as a free citizen. Note that we are not speaking of a violation of one of the meanings of the constitutional right to have a family life, but the denial of the entirety of this right, and it should be considered as such (see also Stamka v. Minister of Interior [24], at p. 787; State of Israel v. Oren [25]).

The rights of the child and his parents

11. A basic principle in our law, with regard to the relationship between children and their parents, is that:

‘It is the law of nature that a child grows up in the home of his father and mother: they are the ones who will love him, give him food and drink, educate him and support him until he grows up and becomes a man. This is the right of a father and mother, and this is the right of the child’ (CA 3798/94 A v. B [148], at p. 154 {268}; see also CFH 7015/94 Attorney-General v. A [23], at p. 65).

According to this principle, the raising of a child by his parents reflects simultaneously both the right of the child to grow up in his parents’ home and the right of the parents to be the persons who raise him. This combination of interests embodies the nature of the parent-child relationship within the framework of family life, which the state should protect against any violation, unless it is required in the best interests of the child. As my colleague Justice A. Procaccia said in CFH 6041/02 A v. B [60]:

‘Removing a child from the custody of his parent and transferring him to the welfare authorities or to an institution by its very nature touches on an issue of a constitutional nature that concerns the value of protecting the personal and family autonomy of the child and his parent and the important social value of preserving the natural family bond between parents and children and the complex fabric of rights and duties arising from that parental bond. It concerns the natural right of a child to be in his parents’ custody, to grow up and be educated by them; it concerns the basic rights of a human being to life, dignity, equality, expression and privacy (Universal Declaration of Human Rights, 1948; Convention on the Rights of the Child; CA 6106/92 A v. Attorney-General [149], at p. 836; CFH 7015/94 Attorney-General v. A [23], at p. 100). It concerns the unique rights of children by virtue of the fact that they are children, including the right to grow up in a family and to preserve the connection with their parents (The Commission for Examining Basic Principles concerning the Child and the Law and their Application in Legislation, chaired by Justice Saviona Rotlevy, 2004, ‘General Part,’ at p. 26); it concerns the right of a parent by virtue of his blood relationship to raise and educate his child, as well as to carry out his duties to him by virtue of his being the child’s parent. The rights of children to a connection with their parents, and the rights and duties of parents to their children create a reciprocal set of rights, duties and values that make up the autonomy of the family.’

12. In so far as the best interests of the child are concerned, art. 3(1) of the Convention on the Rights of the Child provides that:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

Article 9(1) of the Convention on the Rights of the Child further provides that:

‘States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child…’

No one disputes that enforcing a separation of a child from his parents constitutes a very serious violation of the rights of the child to grow up with his family and with his parents. This is of course the case as long as the family concerned is a functioning one, where the child is not harmed by being with it. It is perhaps apposite to add remarks made by this court in CFH 7015/94 Attorney-General v. A [23], at p. 102:

‘It is the law of nature that a child should be in the custody of his parents, grow up in his parents’ home, love them and have his needs taken care of by them. This law of nature is also absorbed by the law of the state, and thus an “interest” of children has become a “right” under the law. Parents have a right to raise their children and children have a right to be loved by their parents and to have their needs provided for by them. A right corresponding to a right and rights corresponding to duties (for both parties). The translation of these into the language of the law will be formulated, inter alia, by way of presumptions: it is a presumption under the law that the “best interests” of a child to be in his parents’ home; who can love their children and care for their needs like parents? Thus children will return their love and place their reliance on their parents.’

We are not speaking merely of harm to the ‘best interests of the child,’ but of a violation of a real ‘right,’ which is possessed by the child, to grow up with his family, and the state has a duty to refrain in its actions from violating this right (CA 2266/93 A. v. B [61], at pp. 234-235). By tearing asunder the family unit, by separating the child from one of his parents, there is a serious violation of the rights of the child, a violation that the state is obliged to avoid in so far as possible.

13. The same is true with regard to the right of the parent, who has a natural right, protected by the law, to raise his child with him and not to be separated from him, as long as this does not involve any harm to the best interests of the child. As my colleague Justice M. Cheshin said in CFH 7015/94 Attorney-General v. A [23], at p. 102:

‘It is the law of nature that a mother and father naturally have custody of their child, raise him, love him and provide for his needs until he grows up and becomes a man. This is the instinct for existence and survival inside us — “the blood ties,” the primeval yearning of a mother for her child — and it is shared by man, beast and fowl. “Even jackals offer a breast and feed their young…” (Lamentations 4, 3) (see also CA 549/75 A v. Attorney-General [150], at pp. 462-463). This tie is stronger than any other, and it goes beyond society, religion and state. The conditions of place and time — they and the persons involved — will determine the timing of the separation of children from their parents, but the starting position remains as it was. The law of the state did not create the rights of parents vis-à-vis their children and vis-à-vis the whole world. The law of the state found this ready made; it proposes to protect an innate instinct within us, and it turns an “interest” of parents into a “right” under the law — the rights of parents to have custody of their children. Cf. CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [151], at p. 723 {390}. It is apt that s. 14 of the Capacity and Guardianship Law provided that “The parents are the natural guardians of their minor children.” Nature is what created this guardianship, whereas the law of the state merely followed nature and absorbed into itself the law of nature.’

14. There is no doubt that separating a parent from his child, separating a child from one of his parents and splitting the family unit involve very serious violations of both the rights of the parents and the rights of their children. These violations are contrary to the basic principles of Israeli law and are inconsistent with the principles of protecting the dignity of parents and children as human beings, to which the State of Israel is committed as a society in the family of civilized peoples.

15. Therefore we must say that preventing the possibility of living together, as a family, violates the constitutional right of the Israeli spouse, parent and child to family life.

The right to equality

16. These serious violations of the right to family life do not stand alone, but are also accompanied by a serious violation of the right of the Arab citizens of the state to equality, since they are the main, if not the only, victims of this law. Between the Arab citizens of Israel and the residents of the territories there are cultural, family, social and other ties, which naturally lead to the fact that most of the Israeli citizens who find spouses among the residents of the territories are Arab citizens of Israel. By preventing the possibility of marrying spouses who are residents of the territories, there is therefore a violation that focuses, first and foremost, on the Arab citizens of the state, and thus a violation of their rights to equality is added to the violation of their right to family life.

17. The importance of the right to equality, as expressing a basic principles in the Israeli legal system, has been recognized in a whole host of cases by this court. The remarks made recently by my colleague President A. Barak in Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41] are apt in this respect:

‘The principle of equality applies to all spheres of government activity. Notwithstanding, it is of special importance with regard to the duty of the government to treat the Jewish citizens of the state and non-Jewish citizens equally. This duty of equality for all the citizens of the State of Israel, whether Arab or Jewish, is one of the foundations that make the State of Israel a Jewish and democratic state. As I have said elsewhere: “We do not accept the approach that the values of the State of Israel as a Jewish state justify… discrimination by the state between the citizens of the state… The values of the State of Israel as a Jewish and democratic state do not imply at all that the state should act in a manner that discriminates between its citizens. Jews and non-Jews are citizens with equal rights and obligations in the State of Israel” (see Kadan v. Israel Land Administration [38], at pp. 280-281). Moreover, “Not only do the values of the State of Israel as a Jewish state not require discrimination on the basis of religion and race in Israel, but these values themselves prohibit discrimination and require equality between religions and races” (ibid. [38], at p. 281). I added that “the State of Israel is a Jewish state in which there are minorities, including the Arab minority. Each member of the minorities that live in Israel enjoys complete equality of rights” (ibid. [38], at p. 282; see also EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [152], at p. 23)’

(See also El-Al Israel Airlines Ltd v. Danielowitz [65]; Israel Women’s Network v. Government of Israel [66]; Miller v. Minister of Defence [67]; Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39]).

I will also add the remarks that I made in Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel [41]:

‘… equality, more than any other value, is the common denominator, if not the basis, for all the basic human rights and for all the other values lying at the heart of democracy. Indeed, genuine equality, since it also applies to relations between the individual and the government, is one of the cornerstones of democracy, including the rule of law. It is essential not only for formal democracy, one of whose principles is ‘one man one vote,’ but also for substantive democracy, which seeks to benefit human beings as human beings. It is a central component not only of the formal rule of law, which means equality under the law, but also of the substantive rule of law, which demands that the law itself will further the basic values of a civilized state.’

18. The violation of the right to equality does not occur merely when the discretion of the authority is tainted with improper discriminatory considerations. We are speaking of a right that looks to the outcome, and it is violated whenever an executive act leads to a reality that discriminates between one citizen and another on a prohibited basis (see Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39], at p. 176; Poraz v. Mayor of Tel-Aviv-Jaffa [32], at p. 334; Nof v. Ministry of Defence [54], at pp. 464-465 {19-20{).

In our case, the substantial outcome of the law, in practice, distinguishes between some Israeli citizens and other Israeli citizens on the basis of their ethnic origin. The position that is created by the law is a position in which the right of the Arab citizens of Israel to family life is violated in a very significant way, whereas the harm to other citizens of the state is merely theoretical. As stated, many of the marriages of Arab citizens of Israel with foreign residents are made with residents of the territories, because of the cultural ties between the two groups. Consequently, the right of the Arab citizens of the state to marry someone who is not a citizen is seriously violated, whereas this violation does not exist for the rest of the citizens of the state. Similarly, the rights of Arab citizens of the state as parents and children to have a family life are also violated. These violations go to the heart of the law, which, in its effect on the Israeli reality, creates a serious violation of the rights of the Arab citizens of the state to family life, a violation that is caused to them because of their ethnic origin.

The significance of the violation of the rights

19. Now that we have determined that the implementation of the law involves a serious and extreme violation of the constitutional rights of the citizens of the state to family life and equality, rights that are protected by the Basic Law: Human Dignity and Liberty, this law should be confronted with the tests of the ‘limitations clause,’ which is in s. 8 of the Basic Law: Human Dignity and Liberty, according to which ‘The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.’ According to these tests it must be determined whether, despite the violation of the protected rights, the law will remain valid.

20. In this matter also I accept the analysis of my colleague President A. Barak and his determination that the law does not satisfy the test of proportionality (in the narrow sense). I cannot accept in this respect the determination of my colleague, Vice-President Emeritus M. Cheshin, that the various serious violations of the law lead to a difficult, but unavoidable, outcome of the permitted immigration policy of the State of Israel, as it is affected by the needs of the moment and security.

21. Indeed, no one disputes that the purpose of protecting the safety and security of all the residents of the state, which lies at the basis of the law, is an important and proper purpose, particularly in the difficult times in which we live. Likewise no one disputes the prerogative of the state to regulate its immigration laws and to prevent anyone whom it regards as a risk to its security from entering its territory.

Nonetheless, when it seeks to realize these proper purposes, the legislature must take into account the serious harm caused as a result of implementing the law. Notwithstanding the supreme importance of the right of all the citizens of the state to security, even within the framework of realizing this right it is not possible to allow the intolerable harm caused by the law, both in its violation of the right to family life and in its violation of the right to equality.

22. In these circumstances, it is not possible to say that the law, which provides a blanket prohibition against the possibility of Israeli citizens living together with residents of the territories and leaves no ray of hope for citizens of Israel to have a family life if their spouses, children or parents are residents of the territories, satisfies the test of proportionality.

As my colleague Justice M. Cheshin said in Stamka v. Minister of Interior [24], at p. 782:

‘Indeed, the strength of the right and the strong radiation emanating from within it require, almost automatically, that the measure that the Ministry of the Interior chooses will be more lenient and moderate than the harsh and drastic measure that it decided to adopt. We will find it difficult not to conclude that the respondents completely ignored — or attributed only little weight — to these basic rights of the individual to marry and to raise a family. If this may be said with regard to a foreigner, it may certainly be said with regard to the Israeli citizen who is a partner in the marriage’ (see also State of Israel v. Oren [25]).

23. Because of the possibility that some of the residents of the territories who receive Israeli citizenship as a result of their marriage to Israeli citizens will participate in terror activity against Israeli citizens, or will aid activity of this kind, the law provides a blanket prohibition against the possibility of marriage between Israeli citizens and residents of the territories. This involves not only serious and excessive harm to any Israeli citizen who wishes to have a family life together with his spouse, child or parent that is a resident of the territories, but also a generalization of all Arab Israeli citizens as persons with regard to whom there is a concern that they will aid, even indirectly, enemy activity against the State of Israel.

The blanket and discriminatory prohibition of the law, and its failure to include any individual check — no matter how stringent — with regard to the risk presented, in practice or in theory, by the person with whom an Israeli citizen wishes to have a family life, involves a serious violation of the rights of Israeli citizens to family life and equality, which is unacceptable.

24. Moreover, depriving the Minister of the Interior of discretion, ab initio, to examine the possibility whether citizenship should be given to any of the residents of the territories in order to realize the right of an Israeli citizen to family life, by ignoring the specific circumstances of the case, raises the concern whether the security consideration is not the only consideration underlying the enactment of the law and it raises questions with regard to the policy that this law wishes to achieve.

This concern is becomes even greater if we survey the legislative history that led to the enactment of the law, which, whether in a concealed or express manner, associates the law with the government’s demographic policy. Thus, already in the government’s decision of 12 May 2003, which is entitled “Treatment of illegal aliens and family reunification policy with regard to residents of the Palestinian Authority and foreigners of Palestinian origin’ (government decision no. 1813), which formed the basis for enacting the law, the ‘security position’ and the ‘ramifications of immigration processes and the residency of foreigners of Palestinian origin in Israel, including by way of family reunification’ were associated (page 2 of the decision), all of which ‘within the framework of the overall policy on matters concerning foreigners’ (page 1 of the decision). Moreover, the decision goes on to state that ‘the Ministry of the Interior will examine, within the framework of formulating the new policy, possibilities of determining quotas for giving approvals for family reunifications, and it will bring a proposal in this regard before the government’ (page 3 of the decision). It need not be said that the fixing of quotas for approvals of family reunifications has no connection with security considerations, so it is possible to understand this paragraph in the decision as being based merely on demographic considerations. Similarly, throughout the legislation process, it is possible to find remarks made by Knesset members and members of various Knesset committees, from various parties, who address the demographic policy that the law implements (see, for example, the debate in the House on 17 June 2003). Notwithstanding, since I agree with the determination of my colleague President A. Barak, that even the security consideration does not justify such a severe violation of the right to family life and the right to equality, I see no need to discuss this matter.

25. In conclusion, if my opinion is accepted, we will grant the petitions, in the sense that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, will be declared void, for the reasons of my colleague the president. A state that regards itself as a civilized state cannot accept as a part of its legislation laws that violate basic human values so seriously and so outrageously. It would have been better had the law not been enacted in the first place. Now that it has been enacted, we are unable, as guardians of the values of the State of Israel as a democratic state, to acquiesce in its continued existence on the statute book of the state.

 

 

Justice E. Hayut

1.    The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the Citizenship and Entry into Israel Law) expired on 31 March 2006, but because of the dissolution of the sixteenth Knesset, the validity of this law was extended by three months starting on 17 April 2006 (the date on which the seventeenth Knesset opened). This occurred by virtue of s. 38 of the Basic Law: the Knesset, which provides:

‘All legislation whose validity would expire within the last two months of the term of office of the outgoing Knesset, or within four months after the Knesset decided to dissolve itself, or within the first three months of the term of office of the incoming Knesset, shall remain valid until the aforesaid three months have ended.’

It would have been possible to dismiss the petitioners before us by saying that the days of the law are numbered and they should wait to see what the legislator will do at the end of the extension period. But since my colleagues chose, because of the importance of the matter, to examine carefully the arguments that were raised in the petitions against the Citizenship and Entry into Israel Law, I too have seen fit to consider the merits of the matter. On the merits, the opinion of my colleague President Barak seems to me preferable to the opinion of my colleague Vice-President Emeritus Cheshin.

2.    The Citizenship and Entry into Israel Law, as the state explained in its responses before us, was intended to contend with the risks involved in giving a status of citizenship or residency or a permit to stay in Israel to the residents of the territories as defined in the law. In its original format of 6 August 2003, the law included a blanket prohibition against giving such a status, apart from several limited exceptions. The law was extended three times in this format, and on 1 August 2005, before the period of the third extension ended, it was published in an amended form, in which the prohibition was reduced and was applied mainly to male residents of the territories between the ages of 14 and 35, and female residents of the territories between the ages of 14 and 25. According to the figures presented by the state, the applications submitted by Arab citizens who are residents of Israel for family reunifications with spouses from the territories were almost all blocked by the law in its original format, whereas the law in its amended format blocks approximately 70% of those applications. It can also be seen from the figures presented by the state that Palestinian spouses of Arab citizens who are residents of Israel that received a permit for family reunifications were involved throughout the years in hostile activity on a minimal level only, if at all (26 residents of the territories who received a status in Israel were interrogated on a suspicion of involvement and the permit of 42 additional residents to stay in Israel was not extended because of suspicious intelligence information that was received with regard to them). Against this background, President Barak determined that the prohibition in the Citizenship and Entry into Israel Law does not satisfy the third subtest of the tests of proportionality that are set out in the limitations clause in the Basic Law: Human Dignity and Liberty, since there is no proper correlation between the benefit involved in realizing the purpose underlying the law (protecting the security of Israeli citizens) and the violation of the constitutional rights of the Arab citizens of Israel to equality and to family life in their state. I agree with this determination.

3.    The armed struggle waged by the Palestinian terrorist organizations against the citizens of Israel and its Jewish residents requires a proper response. It requires the adoption of all the measures available to us as a state, in order to contend with the security risks to which the Israeli public is exposed as a result of this terrorist activity. Enacting laws that will provide a response to security needs is one of those measures and this is the purpose of the Citizenship and Entry into Israel Law. From this viewpoint, we are concerned, as President Barak says, with a law that befits the values of the State of Israel and was enacted for a proper purpose. But this is not enough. In order that the Citizenship and Entry into Israel Law will satisfy all of the tests of the limitations clause, we must also consider whether the violation of the constitutional rights of the Arab citizens in the State of Israel to equality and family life that is caused as a result of the restrictions and prohibitions imposed on the residents of the territories in the Citizenship and Entry into Israel Law satisfies the requirement of proportionality.

The fear of terror, like any fear, may be a dangerous guide for the legislature when it wishes to contend with those causing it. It may cause democracy to overstep its bounds and to be misled into determining ‘broad margins’ for security purposes, while improperly and disproportionately violating the human rights of citizens and residents who belong to a minority group in the state. This was discussed by Professor Sunstein in his book, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, 2005):

‘When public fear is excessive, it is likely to produce unjustified infringements on liberty. In democratic nations in the twentieth century, public fear has led to unjustified imprisonment, unreasonable intrusions from the police, racial and religious discrimination, official abuse and torture, and censorship of speech. In short, fear can lead to human rights violations of the most grotesque kind’ (ibid., at pp. 225-226).

Professor Sunstein also discussed in his book the tendency to impose blanket prohibitions in legislation where the majority of the public is not harmed as a result:

‘If the restrictions are selective, most of the public will not face them, and hence the ordinary political checks on unjustified restrictions are not activated. In these circumstances, public fear of national security risks might well lead to precautions that amount to excessive restrictions on civil liberties. The implication for freedom should be clear. If an external threat registers as such, it is possible that people will focus on the worst-case scenario, without considering its (low) probability. The risk is all the greater when an identifiable subgroup faces the burden of the relevant restrictions. […] if indulging fear is costless, because other people face the relevant burdens, then the mere fact of “risk,” and the mere presence of fear, will seem to provide a justification’ (ibid., at pp. 204-205, 208).

4.    The Citizenship and Entry into Israel Law which is the subject of our deliberation does not include any individual criteria for examining the security danger presented by a resident of the territories, apart from a general criterion of age. In determining such a blanket prohibition against granting a status to the residents of the territories, the law draws wide and blind margins that unjustly and disproportionately harm many thousands of members of the Arab minority that live among us and wish to have a family life with residents of the territories. The right of a person to choose the spouse with whom he wishes to establish a family and also his right to have his home in the country where he lives are in my opinion human rights of the first order. They incorporate the essence of human existence and dignity as a human being and his freedom as an individual in the deepest sense. Notwithstanding, like any other basic right, we are not speaking of absolute rights, and a person as a social creature that lives within a political framework must accept a possible violation of rights as a result of legitimate restrictions that the state is entitled to impose. The legitimacy of these restrictions is examined in accordance with constitutional tests that are set out in our case in the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty.

Imposing restrictions on family reunifications with residents of the territories because of security needs is a necessity and it should not be denigrated. The difficulty in taking risks in matters of security and matters involving human life is clear and obvious and it increases in times of crisis and prolonged danger that necessitate making the security measures more stringent and inflexible. Notwithstanding, security needs, no matter how important, cannot justify blanket collective prohibitions that are deaf to the individual. Democracy in its essence involves taking risks and my colleague Vice-President Emeritus Cheshin also discussed this. He also discussed how ‘the determination of measurable concepts is a part of the experience of the law.’ But in his opinion the prohibitions imposed in the Citizenship and Entry into Israel Law are reasonable and therefore we should not intervene in the work of the government and the Knesset that determined them. My opinion is different. I am of the opinion that an examination of the Citizenship and Entry into Israel Law in accordance with constitutional criteria leads to the conclusion that the prohibitions prescribed in the law do not satisfy the constitutional test since they harm the Israeli Arab minority excessively. In the complex reality in which we live, it is not possible to ignore the fact that the Palestinian residents of the territories have for many years been potential spouses for the Arab citizens of Israel. It should also not be ignored that according to past experience and according to figures presented by the state as set out above, the scope of the harm involved in the blanket prohibition in the Citizenship and Entry into Israel Law is not balanced and does not stand in a proper proportion to the extent of the risk presented to the Israeli public if the residents of the territories receive, after an individual check, a status or a permit to stay in Israel within the framework of family reunification.

5.    One of the main arguments that the respondents raise to justify the blanket prohibition in the Citizenship and Entry into Israel Law is the argument that in many cases the security establishment does not have information with regard to the Palestinian spouses for whom a family reunification is requested. In such circumstances, and in view of the tense security position and the great hostility that prevails between Israel and the Palestinians at this time, there is no alternative, so the respondents argue, to applying an absolute presumption of dangerousness to every Palestinian spouse, at least at the ages that the law sets out in its amendment format. Indeed, against the background of the security reality that we have been compelled to contend with since September 2000 and perhaps even with greater intensity most recently, there is certainly a basis for a presumption of dangerousness that the respondents wish to impose in this matter of family reunifications between Arab citizens of Israel and residents of the territories. Notwithstanding, in order that the fear of terror does not mislead us into overstepping our democratic limits, it is proper that this presumption should be rebuttable within the framework of an individual and specific check that should be allowed in every case, and it is this that the law does not allow. This is the defect that blights the Citizenship and Entry into Israel Law from a constitutional viewpoint — a defect of a lack of proportionality.

6.    The conflict between the basic rights in the case before us touches the most sensitive nerves of Israeli society as a democratic society. But no matter how much we wish to protect the democratic values of the state, we must not say ‘security at any price.’ We must consider the price that we will pay as a society in the long term if the Citizenship and Entry into Israel Law with its blanket prohibitions will continue to find a place on our statute book. One of the main roles of the High Court of Justice, if not the main role, is to protect the constitutional rights of the minority against a disproportionate violation thereof by the majority. Where such a violation finds expression in the provisions of a law of the Knesset, it is the role of the court to point to that violation and declare the provisions to be void, so that the Knesset can act in its wisdom to amend them. The provisions of the Citizenship and Entry into Israel Law suffer, as aforesaid, from such a disproportionate violation. Therefore we are obliged to declare them void, and the Knesset, so it is to be hoped, will act in order to formulate a proper and proportionate statutory arrangement in place of this law.

For these reasons I agree as aforesaid with the opinion of my colleague the president.

 

 

Justice A. Procaccia

1.    I agree with the opinion of my colleague the president together with the constitutional analysis and his conclusions concerning the relief. I agree with the opinion that in the Israeli legal system the right of a person to family life is recognized as a part of human dignity; I also agree that the right of an Israeli spouse to have a family unit in Israel in conditions of equality with other Israeli couples is a part of human dignity. Therefore the right to family in conditions of equality constitutes a protected constitutional right under the Basic Law: Human Dignity and Liberty. The Citizenship and Entry into Israel Law (hereafter — ‘the law’) violates the right of the Israeli spouse to family life, when it does not allow him to realize his right to family life in Israel with his Palestinian spouse from the territories. It is the right of the Israeli spouse that his family — his spouse and children — should live with him in Israel. The Citizenship and Entry into Israel Law, in a discriminatory manner, denies the right of thousands of Arabs, citizens of Israel, to realize their right to family life in Israel; it thereby violates their right to human dignity.

I also agree with the president’s position that the violation caused by the law to the right to family, as a part of human dignity, does not satisfy the principles of the limitations clause in the Basic Law. Even though it is possible to say that the law is intended for a proper purpose, it does not satisfy the tests of proportionality. In this respect, I would like to focus on the test of constitutional proportionality in the narrow sense, in so far as it examines the proper correlation between the benefit accruing from realizing the policy that the law is intended to promote and the damage caused by it to the human right, and in so far as it seeks to make a value balance between the strength of the interest that the law seeks to achieve as compared with the violation of the right of the individual that ensues therefrom.

 I agree also with the outcome reached by the president, his application of the test of proportionality in the narrow sense to the issue before us, and his conclusion that in the proper balance between the violation of the human right of the Israeli spouse to family life in conditions of equality, which arises from the blanket prohibition in the law (subject to certain exceptions in the amendment to the law) against the entry of the Palestinian spouse from the territories within the framework of family reunifications, and the benefit that accrues to the security interest of the Israeli public from such a blanket prohibition, the former prevails over the latter. The reason for this is that the marginal advantage in realizing the security purpose by means of the benefit in the blanket prohibition as compared with the benefit in the individual check of persons applying for family reunifications does not justify the extent of the violation of the constitutional right caused to the Israeli spouses by the blanket denial of the entry of the Palestinian spouses from the territories to be reunited with them. This is because ‘the additional security that the blanket prohibition achieves is not proportionate to the additional damage caused to the family life and equality of the Israeli couples,’ as the president says in his opinion (para. 92).

But I see a need to add some remarks of my own because of a certain difference that exists between the president’s approach and my approach on the question of the initial weight of the security consideration in the equation of the balance between the conflicting values. Whereas the president accepts the security arguments of the state in full, both with regard to the credibility of the security consideration and also with regard to its strength, I have doubts in this regard. Although there is no basis, in my opinion, to deny the security ground entirely, I am not certain that this ground is the only one that really underlies the enactment of the law; moreover, I have objections to the strength of this consideration, with regard to the figures that the state presented and the analysis of these against the background of the policy of the government in related fields. The result that is implied by this is that in the equation of the balance for the purpose of examining the principle of proportionality (in the narrow sense) as it should be presented, the violated human right is on the highest level and its weight is considerable. Opposing this is the conflicting value of security, which in the circumstances of the case is on a low level and its weight is qualified and merely relative. The result of the balance therefore justifies, to an even greater degree, intervention in the sweeping violation of the right of the Israeli spouse to realize family life with his Palestinian spouse. It justifies making the realization of the human right conditional on the results of an individual security check to discover a potential risk in the person who wishes to enter Israel for the purpose of family reunification, and it is even possible that it justifies imposing various means of supervision on a Palestinian spouse whose entry and residence have been permitted, in accordance with criteria that will be determined after taking into account the strength of the security consideration.

Let me explain my reasons.

The constitutional scrutiny

2.    The foundation of the constitutional system in Israel is the protection of human rights. Within the framework of this protection there is the conception that a person’s constitutional rights are not absolute, and sometimes there is no alternative to a violation of them in order to achieve an essential public purpose, or in order to protect a constitutional right of another person. In circumstances where there is a tension between a human right and a conflicting public purpose, it is necessary to balance one against the other properly in order to find the optimal balancing point that will give expression to the proper correlation between the conflicting values, as derived from a constitutional outlook based on the principles of democracy.

‘An “external balance” is therefore needed between the rights of the individual and the needs of the public. Even this balance is a result of the recognition that human rights are not absolute. It follows that the constitutional super-legislative nature of human rights does not lead to the conclusion that human rights are absolute. Super-legislative human rights are always relative rights’ (A. Barak, Legal Interpretation: Constitutional Interpretation, at p. 361).

3.    Within the framework of the constitutional scrutiny of a law that seeks to violate rights of the individual, the tests of the limitations clause serve as an essential tool for the proper balance between the violated right and the public interest, the realization of whose purpose involves a violation of the right. The limitations clause is the focus around which the constitutional balance between the individual and the public, and between individuals inter se, is formulated. It reflects a basic approach whereby the needs of society may even justify a violation of human rights, provided that the violation is for a proper purpose, and it is not disproportionate. This test reflects a balance between basic rights and other important values. It arises from a reality in which there are no absolute truths and no absolute values. It is built on a perspective of the relativity both of human rights and of social values. It is based on the assumption that achieving harmony between the rights of the individual and the needs of the public requires a compromise, and that the nucleus of the compromise is what underlies the harmonious arrangement between all the rights of the individual and the values of society. It is the condition for a civilized society and proper constitutional government.

4.    The requirement of proportionality in the limitations clause is based on the principle of balancing between the violated human right and the conflicting value with which it contends. It involves an examination, inter alia, of whether the benefit achieved from the conflicting value is commensurate with the violation of the human right. The balance is affected by the relative weight of the values; in assessing the weight of the right, one should take into account its nature and its status on the scale of human rights. One should take into account the degree and scope of the violation thereto. With regard to the conflicting public interest, one should consider its importance, its weight and the benefit that accrues from it to society. There is a reciprocal relationship between the weight of the human right and the degree of importance of the conflicting public interest. The weightier the human right and the more severe the violation thereof, the more it is necessary, for the purpose of satisfying the test of proportionality, that the conflicting public interest will be of special importance and essentiality. A violation of a human right will be recognized only where it is essential for realizing a public interest of such strength that it justifies, from a constitutional viewpoint, a proportionate reduction in the right (Levy v. Government of Israel [99], at p. 890; Beit Sourik Village Council v. Government of Israel [2], at p. 850 {309}). According to the tests of the limitations clause, both the violated right and the public interest are examined in accordance with their relative weight, where the basic premise is:

‘The more important the violated right, and the more serious the violation of the right, the stronger the public interest must be in order to justify the violation. A serious violation of an important right, which is merely intended to protect a weak public interest, may be deemed to be a violation that is excessive’ (per Justice I. Zamir in Tzemah v. Minister of Defence [9], at p. 273 {672}).

5.    In the matter before us, the subject of our scrutiny is the balance between the right of the Israeli spouse to realize family life in Israel with the Palestinian spouse from the territories, on terms of equality, and the interest of protecting public safety. This balance is intended to achieve protection of life on the one hand, and the quality and meaning of human life on the other. The balance requires relativity. It cannot be achieved in absolute values. It is built on a probability test that rejects absolute values. The probability assessment of the degree of risk to life is what confronts the human right to family, and in determining the relativity between them we must evaluate the strength of the likelihood of danger to life that is involved in realizing the human right to family. In determining the aforesaid relativity, we will consider, inter alia, the place of this human right on the scale of human rights.

The right to family

6.    The human right to family is one of the fundamentals of human existence. It is hard to describe human rights that are its equal in their importance and strength. It combines within it the right to parenthood and the right of a child to grow up with his natural parents. Together they create the right to the autonomy of the family.

‘These are basic principles: the right to parenthood and the right of a child to grow up with his natural parents are rights that are interconnected and they jointly create the right to the autonomy of the family. These rights are some of the fundamentals of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (LFA 377/05 A v. Biological Parents [21], at para. 6 of my opinion).

Alongside the human right to the protection of life and the sanctity of life, constitutional protection is given to the human right to realize the meaning of life and its raison d’être. The right to family is a raison d’être without which the ability of man to achieve self-fulfilment and self-realization is impaired. Without protection for the right to family, human dignity is violated, the right to personal autonomy is diminished and a person is prevented from sharing his fate with his spouse and children and having a life together with them. Among human rights, the human right to family stands on the highest level. It takes precedence over the right to property, to freedom of occupation and even to privacy and intimacy. It reflects the essence of the human experience and the concretization of realizing one’s identity.

The value of security

7.    In view of the special weight and strength of the right to family given to the individual, a reduction thereof is possible only where it is confronted by a conflicting value of special strength and importance. ‘The degree of importance of the need that is required in order to justify a violation may change in accordance with the nature of the violated right… the purpose is proper if it is intended to realize “an essential need, or an urgent social need, or a major social interest’ (Levy v. Government of Israel [99], at para. 15). The duty of the state to protect the lives of its citizens places the interest of security on the highest level of importance. This interest has two aspects: a social aspect, which casts light on the duty of the state to protect the security of its citizens; and an individual aspect, which casts light on the right of the individual in society to protection for his life. The right to life is a constitutional human right of the first order, and it is placed first in the order of human rights protected in the Basic Law: Human Dignity and Liberty. Notwithstanding, the value of the security of life is not a constant. It has different meanings and strengths in different contexts. Its relative weight changes from case to case according to the degree of probability that the danger to life arising from the relevant specific context will be realized.

8.    In the tension that exists between the value of the security of life and other human rights, including the right to family, the consideration of security takes precedence where there is a certainty or almost certain likelihood that if an action that involves a reduction of a human right is not carried out, then human life will be harmed. The right to life takes precedence over the right to realize the meaning of life, since without life nothing is left. But as a rule, in the balance between security and the human right we are not dealing with absolute values, and usually we do not assume a certainty of harm to life. We are dealing with a probability of the degree of danger, and it is this that we weigh against the violation of the human right.

What is the probability of the danger to human life in the circumstances of permitting the Palestinian spouses to enter Israel to be reunited with their Israeli spouses? Is the probability of danger so high that it justifies a blanket prohibition of the Israeli spouse’s right to family? Or is the likelihood of the danger not on the level that justifies a blanket prohibition, and there is a proportionate response that will be expressed in adopting lesser security measures, which will satisfy the existing level of probability while causing a smaller reduction in the human right?

Burden of proof

9.    The burden of proof with regard to the existence of a likelihood of a security risk to a degree that justifies a reduction of a human right rests with the state (Movement for Quality Government in Israel v. Knesset [51], at paras. 21-22 and 49 of the opinion of President Barak; Barak, Constitutional Interpretation, at p. 477; United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 428-429; the opinion of Justice I. Zamir in Tzemah v. Minister of Defence [9], at pp. 268-269 {665-666}). The state has the burden of proving that the need to protect the public against a real security risk necessitates a real violation of a human right, and that the public need cannot be addressed without such a violation. It must persuade the court that the probability of the security danger occurring is so high that it requires measures to be taken that violate rights as set out in the legislation that causes the violation. Where the probability of the danger is so high that it almost reaches a certain danger, even the most exalted of constitutional human rights will give way to it. Where the probability that the risk will be realized is low, it is possible that the value of security will not justify any violation of the human right, or it is possible that it will justify a lesser violation.

10. The ‘security need’ argument made by the state has no magical power such that once raised it must be accepted without inquiry and investigation. There were times in the past when the state’s argument concerning a security need was accepted on the face of it, without any examination of its significance or weight. Those times have passed, and for many years now the arguments of the authorities concerning a security need have been examined on their merits by the courts in various contexts. Admittedly, as a rule, the court is cautious in examining the security considerations of the authorities and it does not intervene in them lightly. Notwithstanding, where the implementation of a security policy involves a violation of human rights, the court should examine the reasonableness of the considerations of the authorities and the proportionality of the measures that they wish to implement (Ajuri v. IDF Commander in West Bank [1], at pp. 375-376; HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [153], at p. 810). For the purposes of this examination, the court is sometimes required to look at privileged material ex parte, and to assess the strength of the security risk in accordance with probability criteria concerning the strength of the violation of the rights of the individual as opposed to this probability (see, for example, with regard to administrative detention orders: ADA 8607/04 Fahima v. State of Israel [154], at pp. 263-264; HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [155], at pp. 350, 360-361; with regard to preventing a meeting of a detainee with his lawyer: Marab v. IDF Commander in Judaea and Samaria [3], at pp. 381-382 {212-215}; with regard to protecting the home of the Minister of Defence: HCJ 7862/04 Abu Dahar v. IDF Commander in Judaea and Samaria [156], at paras. 13-14; with regard to assigning the residence of residents of the territories: Ajuri v. IDF Commander in West Bank [1], at pp. 370, 372, 376 {102-103, 105-106, 110-111}; with regard to restriction and supervision orders: HCJ 6358/05 Vaanunu v. Home Front Commander [157]). Sometimes, examining the strength of the security consideration requires examining specific material concerning the person involved; sometimes, when the security policy of the authorities concerns a whole sector of the public, a general examination should be made on the basis of figures that have been presented, by means of criteria for an objective probability analysis. Such is the case before us.

Examining the security consideration in a two-stage process

11. An examination of the weight of the security consideration should be made in a two-stage process. First, we must examine the degree of credibility of the claim concerning ‘security needs.’ We must ascertain whether the security considerations that have been raised are not being used, in reality, as a cloak for other completely different purposes which are really the purposes that underlie the legislation containing the violation of the right. Second, assuming that we find that the security consideration is credible, we must assess, on the basis of the figures presented, what is the strength of the security consideration from the viewpoint of the extent of the probability that the risk underlying it will indeed be realized if the policy involving the violation of the right is not implemented, or if it is not implemented in full. The two-stage process for examining the security consideration is built, therefore, on two strata: examining its credibility in the first stage, and examining its strength in the second stage.

12. This two-stage examination of the state’s argument concerning security needs was made by the court, when it was required to decide upon the constitutionality of the route of the separation fence in Beit Sourik Village Council v. Government of Israel [2] and Marabeh v. Prime Minister of Israel [5] (paras. 62-65 of the judgment). In Beit Sourik Village Council v. Government of Israel [2] the credibility of the security consideration was examined in the first stage in relation to the petitioners’ claim that the real reason for building the fence was not security, as claimed by the state, but a political reason, and its purpose was to annex areas from the West Bank to Israeli territory on the western side of the green line. In this regard, the court held that it was proved that the building of the fence was a result of security considerations, not political ones (Beit Sourik Village Council v. Government of Israel [2], at pp. 830-831 {286-288}; Marabeh v. Prime Minister of Israel [5], at para. 62). It was held that the decision to build the fence did not arise as a political idea for the annexation of territory, but it derived from military-security needs, and as an essential measure for protecting the state and its citizens. In the second stage the court examined the strength of the security-military need to build the fence and the route chosen for it in relation to the degree of the violation of the rights of the local residents involved in realizing this need. Examining this strength of the public interest involves an act of balancing in which the public need is balanced against the violated right, and the court chooses a balancing point that does not attribute an absolute value to either of the competing values, but balances between them in accordance with their relative weight and importance as derived from a constitutional outlook that aims for harmony between the rights of the individual and the needs of the public. A two-stage examination of this kind should be made also in the case before us.

Credibility of the security consideration

13. The state bases the credibility of the security consideration on the general assessments of the security establishment. According to their approach, ‘there is a security need to prevent, at this time, the entry of residents of the territories, as such, into Israel, since the entry of residents of the territories into Israel and their free movement within the State by virtue of the receipt of Israeli documentation is likely to endanger, in a very real way, the safety and security of citizens and residents of the State’ (para. 4 of the respondents’ closing arguments of 16 December 2003); and from a general perspective, ‘giving a permit to stay, for the purpose of becoming a resident of Israel, to a resident of a state or a political entity that is involved in an armed conflict with the State of Israel involves a security risk, since the loyalty and allegiance of that person is likely to be to the state or political entity in conflict with Israel.’ It was also argued that since the armed conflict between Israel and the Palestinian Authority changed at the end of September 2000, hostile Palestinian entities began to make increasing use of Arab citizens of the State of Israel, ‘and especially’ it is alleged ‘of persons who were residents of the territories and received a status in Israel by virtue of the various family reunification processes’ (para. 5 of the closing arguments of the state of 16 December 2003). A synopsis of the state’s security arguments is that, as a rule, enemy nationals that have a double loyalty constitute a security risk when they enter Israel; the residents of the territories who have undergone a process of family reunification are an example of this, and their entry into Israel and their free movement in Israel are likely to aid the armed struggle of the Palestinian side against the residents of the State of Israel; as proof, of the Israeli citizens and residents who aided the armed struggle of the Palestinians, most, according to the state, are residents of the territories who received their status as a result of a process of family reunification.

But there is a difficulty in reconciling the state’s claim that the main security risk comes from Palestinian spouses who have become resident in Israel as a result of family reunifications with the statistical figures that the state itself presented. Since 1994, approximately 130,000 residents of the territories received one status or another in Israel (statement of the Attorney-General Mr Mazuz and the Director of the Population Register at the Ministry of the Interior at the meeting of the Interior and Environmental Affairs Committee of the Knesset on 14 July 2003 (minutes no. 47)). Out of this number of residents, we are told that 26 are undergoing investigation on a suspicion of involvement in terror activity. This contrasts with 247 persons involved in terror activities among Israeli Arabs. Moreover, no figures were presented with regard to possible persons involved in terror activity among the thousands of Palestinian workers who are permitted to enter Israel every day for the purpose of employment. These figures, in themselves, are inconsistent with the statement that the main security risk is presented by residents of the territories who received a status in Israel within the framework of the reunification of families. Notwithstanding, the assumption that there is a security risk of one strength or another from the entry of Palestinian spouses to live in Israel certainly cannot be denied, and it is proved also by the relatively small number of persons being investigated for involvement in terror activity among these residents. But this figure against the background of the other figures casts light upon the strength of the security risk.

14. In examining the credibility of the security consideration, we should also not ignore the fact that at various times during the legislative process of the law and its amendment, the demographic issue was raised and debated against the background of the blanket prohibition against the entry of Palestinian spouses from the territories into Israel. Admittedly, the state, when presenting the law, pointed to the security consideration as a sole consideration. Nonetheless, from the debates in the Knesset it can be seen that the demographic issue hovered over the legislative process the whole time, and was a major issue in the deliberations of the Interior Affairs Committee of the Knesset and the House. There were some members of the Knesset from various parties who thought that the demographic aspect was the main justification for the legislative arrangement that was adopted. There were some, such as Minister Gideon Ezra (Likud, the minister communicating between the government and the Knesset at that time) and Chairman of the Knesset Ruby Rivlin (Likud) who warned against family reunifications as a mechanism that was designed to implement de facto a right of return (see the minutes of session no. 276 of the sixteenth Knesset, on Wednesday, 20 Tammuz 5765 (27 July 2005), at p. 15; the meeting of the Interior Affairs Committee on 29 July 2003). Others, such as Knesset Member Zahava Gal-On (Meretz-Yahad), Chaim Oron (Meretz-Yahad), Nissim Zeev (Shas), Nissan Slomiansky (National Religious Party), Michael Ratzon (Likud) and Ehud Yatom (Likud) expressly mentioned the phenomenon that was given the name of ‘the demographic danger’ in the debate, and they pointed to the purpose of the law as if it was intended to put a stop to this danger also. Against this danger, some of them warned, the state should defend itself (see Proceedings of the Sixteenth Knesset of 23 May 20005, on pp. 3, 10-11; minutes no. 47 of the meeting of the Interior Environmental Affairs Committee of the Knesset of 28 June 2005, on p. 7). The Arab members of the Knesset claimed throughout the legislative proceeding that the purpose of the law was to further a demographic purpose. It is not superfluous to point out that the fourth respondent, which was joined as a party in this proceeding, focused in its arguments on the demographic aspect of the law that is under scrutiny.

The state, within the framework of its arguments, was prepared to declare that even though the security consideration is the only one underlying the law, even if the demographic consideration was a basis for the policy that led to its enactment, it would still be a legitimate consideration that befits the values of the State of Israel as a Jewish and democratic state:

‘Even if the predominant purpose of the law was demographic — which is not the case — this purpose would be consistent with the values of the State of Israel as a Jewish and democratic state…’ (para. 169 of the closing arguments of the state of 16 December 2003).

Since the state, according to its declaration, did not rely on the demographic consideration as a basis for the legislation under scrutiny here, we are not required to place this consideration under constitutional scrutiny. Notwithstanding, the demographic consideration hovered in the background of the legislative process of the law, and it is difficult to escape the impression, despite the denial of the state in this regard, that it had a presence of some weight or other in the process of formulating the blanket prohibition against the entry of Palestinian spouses from the territories into Israel within the framework of family reunifications.

It can therefore be said that the security consideration, whose purpose is to prevent abuse of the process of family reunification in order to increase terrorist activity inside Israel is, in itself, a credible consideration, and it has a basis in the figures that were presented. Notwithstanding, the possibility of the existence of an additional motive in the background to the legislation of the law, even if there is nothing in this to reduce the credibility of the security consideration, may reflect to some extent on its weight and strength.

The strength of the security consideration

15. An examination of the strength of the security consideration should provide an answer to the question whether there is a justification for the blanket prohibition against the entry of Palestinians who are residents of the territories into Israel within the framework of family reunifications. This question is examined not only in accordance with the general assessments presented by the security establishment, but also in accordance with the factual figures that were presented, and the analysis of these with objective probability criteria. I will say already at this stage that in my opinion the figures as presented by the state do not justify a blanket prohibition against the entry of Palestinian spouses into Israel within the framework of family reunifications, which means a sweeping violation of the human rights of Israeli citizens and residents. The state has not succeeded in discharging the burden imposed on it to convince the court that, in the circumstances of the case, the strength of the security risk justifies the serious and sweeping violation of the right to family caused to those residents of Israel who are prevented from being reunited with their spouses. The following are the reasons for this conclusion.

The number of persons among the Palestinian spouses who are suspected of involvement in hostile activity

16. In its closing arguments, the state argues that ‘in attacks carried out with the aid of residents of the territories… 45 Israelis were killed and 124 were injured.’ Accordingly, ‘23 of the residents of the territories, who received a status in Israel as a result of family reunifications, were involved in real aid for hostile activity against the security of the state’ (para. 17 of the closing arguments of the state of 16 December 2003). Out of 148 suicide attacks, in 25 cases residents of the territories who received a status by virtue of family reunifications were involved. In the state’s reply of 7 February 2006, the number of persons being investigated for involvement in terror activity from among the residents of the territories who received a status by virtue of family reunifications was stated to be 26. Similarly, with regard to 42 additional residents of the territories, their permit to stay in Israel was not extended because of ‘intelligence information that indicated their involvement in terror activity or regular contact with terrorists’ (para. 29 of the state’s response of 7 February 2006). Within the framework of those 26 persons that are suspected of involvement, the state presents details of the cases of six persons who hold Israeli identity cards and whose status was obtained within the framework of family reunifications, that are suspected of carrying out attacks or aiding attacks. These specific examples do not disclose what was the nature of the involvement of the six persons in the planning or perpetration of the attacks, and it is impossible to learn from what is written whether they were attacks that were actually carried out or foiled, and what happened to the six persons. With regard to the 20 other persons suspected of involvement in terror activity there is also no information with regard to the outcome of those investigations.

It is not superfluous to point out that since 1994 approximately 130,000 residents of the territories received one status or another in Israel, and, of all of these, 26 as aforesaid are under investigation with regard to involvement in terror activity. In view of the large number of Palestinians from the territories who acquired a status in Israel since 1994, the number of persons interrogated on a suspicion of some involvement or other in aiding terror activity is small, and moreover we do not have any clear information concerning the nature of the collaboration of those involved in the terror activity.

Palestinian workers entering Israel

17. According to the policy of the government, many thousands of Palestinian workers enter Israel from the territories each day. From the notice of the state of 16 December 2003 (para. 180), it transpires that permits are given to approximately 20,000 workers, but this quota changes from time to time in view of the circumstances. The state did not present us with any figures on the question of whether among these workers persons were found to be involved in terror activities. It does not require much convincing to realize that in searching for collaborators for terror activities, there is no special difficulty in using such workers, who enter Israel each day with a permit and return to the territories in the evening. If, as the state claims, the basis for effective aid to terror lies in someone being connected with the territories on the one hand, and his access to Israel on the other, these two elements exist with regard to many thousands of Palestinian workers who come to Israel from the territories each day. We have not found that the security risk involved in the entry of Palestinian workers into Israel each day has led the state to adopt a blanket prohibition against the entry into Israel of the workers, who satisfy economic and employment needs in which the state has an interest.

According to the state, one cannot compare the workers with the spouses since the security risk presented by these groups is completely different. The entry of workers into Israel is conditional upon calm in the security situation, since in times of increased risk, a general closure is imposed on the territories, and the entry permits into Israel are suspended automatically. Moreover, the various supervision measures that are imposed on the workers from the territories allow the security forces to negate, in so far as possible, the ability of the workers to become involved in terror activity. The fact that these workers do not stay the night in Israel helps this supervisory mechanism (para. 180 of the closing arguments of the state of 16 December 2003). By contrast, so it is claimed, Palestinian spouses who are allowed to enter Israel acquire a status here and stay here on a permanent basis. This status gives them a greater weight as potential collaborators for terror. This position is questionable for several reasons.

First, in the absence of figures regarding the number of persons involved in terror activity among Palestinian workers, it is difficult to accept as presented the premise that the risk from the Palestinian spouses who acquired residency in Israel exceeds what is expected from the Palestinian workers. The spouse who is involved in terror can expect a significant loss not only in the criminal sanctions to which he will be sentenced but also in the potential loss of his status in Israel and the ability to live with his family in Israel. The worker, by contrast, risks criminal sanctions and the loss of his place of work and a permit to enter Israel in the future. The risk of losing the status in Israel and the ability to realize family life here without doubt constitutes a deterrent for the spouse, and it is possible that this can explain the relatively small number, over the years, of persons suspected of involvement in terror among the Palestinians who have a status in Israel by virtue of family reunifications.

Second, within the framework of the supervisory measures introduced in order to contend with the potential risk, it is possible to choose appropriate security measures and apply them also to Palestinian spouses who will not only be subject to an individual check before they enter Israel, but will also be subject to the supervision of the authorities when they are living in Israel, in order to make them less accessible and available to the terrorist organizations. Within the framework of the security measures it is also possible to include the cancellation of permits to stay in Israel where there is substantiated information about a risk anticipated from someone who received a permit to stay in Israel by virtue of family reunifications. Proportionate supervisory measures for the Palestinian spouses who wish to live in Israel within the framework of family reunifications can be implemented in a similar manner to those imposed on Palestinian workers, with the appropriate changes. Between a blanket prohibition of entry permits and giving a blanket permit to enter Israel there is a middle ground where it is possible to make stringent individual checks of those persons applying to enter Israel before they do so, and to impose on those whose entry is permitted various supervisory measures on a continuous basis in a manner that is commensurate with the likelihood of the risk.

Persons involved in terror among Israeli citizens

18. We should also not ignore the figures presented by the state, according to which 247 Israeli Arabs, citizens and residents, were found to be involved in terror activity against the Jewish residents of the state (para. 29 of the state’s response of 7 February 2006). Citizens of Israel, both Jews and Arabs, enjoy the same human rights and liberties that are provided by Israel’s constitutional system. The Arab population of Israel is a faithful and peace-seeking sector of the population, even if it contains a small minority that abuses its civil liberties and becomes involved in the struggle of murderous terror. Because of this small minority, it did not occur to anyone to violate the civil rights of the Arab population in Israel, even though according to the figures the number of Arab Israelis involved in terror activity is nine times greater in absolute terms that the involvement of Palestinian spouses who acquired a status by virtue of family reunifications. Just as it would not occur to anyone to assume that the risk anticipated from a small minority of local citizens should result in a sweeping injury of the complete population sector of Israeli Arabs, who are residents and citizens of the state, so too it is difficult to find a justification for a sweeping injury to parts of precisely the same population, the residents and citizens of Israel, when we are speaking of family reunifications with spouses from the territories. The individual check that is intended to locate a potential danger that is anticipated from someone, even if it does not remove the danger entirely, will certainly reduce its probability to such a level that it will deny a constitutional basis for a sweeping injury to the human rights to family life. We ought to achieve a genuine and balanced proportionality between the degree of the remaining security danger after exercising individual supervisory measures and the protection of human rights involved in a selective injury only, where a genuine risk potential is discovered in some person or other.

The strength of the security consideration — conclusions

19. The conclusion that follows from the aforesaid is that the state has not discharged the burden imposed on it to show that the sweeping violation of the constitutional human right satisfies the proportionality test of the limitations clause. The probability of the security risk from the entry of Palestinians into Israel within the framework of family reunifications is not of such a strength that it justifies the imposition of the blanket prohibition by means of a law that prevents family reunifications as a rule, apart from a few exceptions. The blanket prohibition is not commensurate with the strength of the violated human right to family life that is possessed by the Israeli spouse who is a resident or citizen of Israel. From the figures set out above, it is difficult to see a rational policy in the approach of the state to the existing security risk, which treats risk groups that have things in common differently. The state accepts the existence of risks that exceed those anticipated from Palestinian spouses without imposing blanket prohibitions, but at the same time it imposes an almost total denial of family reunifications in a manner that is inconsistent with the relativity of the risk expected from them.

The focus of the law on the population of spouses from the territories is inconsistent with the policy of the state with regard to risk factors that are not smaller, and are perhaps even greater, than those presented by family reunifications. In other contexts, which give rise to significant risks, the state refrains from a sweeping violation. It seeks to spread the risk in as intelligent and proportionate manner as possible. This is not the case with regard to persons applying for family reunifications. This raises the concern that the real purpose of the law is not entirely identical with the alleged security purpose, and that the strength of the security consideration is not as significant as alleged. In view of the aforesaid, the criteria of the law are not consistent with the proper point of balance between the strength of the security interest and the extent of the violation of the human right (Davidov, Yovel, Saban and Reichman, ‘State or Family? The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003,’ 8 Mishpat uMimshal, vol. 2, 643 (2005), at pp. 671-672; J. Tussman & J. tenBroek, ‘The Equal Protection of the Laws,’ 37 Calif. L. Rev. 341 (1949), at pp. 344-353).

20. In the circumstances of this case, in the equation of the balance required for examining the element of proportionality in the limitations clause, the human right of the Israeli spouse is on a higher level than the conflicting security interest. The strength of the security consideration does not justify a blanket prohibition of the right of the Israeli spouse to family life in Israel. Proportionality justifies taking the value of security into account, but only to a relative degree as implied by a consideration of the strength of the risk and the strength of the violated human right. Proportionality justifies only a relative violation of this right, relative to the existence of a concrete danger potential that will be discovered from an individual check, from specific information collected with regard to an individual and from imposing various supervisory measures that will guarantee, in so far as possible, the identification of the danger in time.

Indeed, the proportionality tests lead to the value decision that confronts the question, to what extent may the government of a democratic country violate human rights in the name of the national interest and national security; when do we cross the proper balancing point and give a blanket protection to society, while improperly violating the rights of the individual, and when does the social interest become an absolute value at the expense of the human right, rather than maintaining the proper proportionality between them. The tests of proportionality require a value balance in which the premise is that not every contribution to the general level of security justifies a sweeping violation of human rights. Where a sweeping violation reflects an improper proportion between the likelihood of the security risk and the strength of the violation of the right, a different, more rational and just proportion is required. This proportionality is built on a compromise between the general social value and the rights of the individual that deserve protection.

The sweeping violation

21. We must beware of the lurking danger that is inherent in a sweeping violation of the rights of persons who belong to a particular group by labelling them as a risk without discrimination, and of the concern involved in using the security argument as a ground for a blanket disqualification of a whole sector of the public. There are cases in history in which this happened, and later constitutional thought recognized the mistake in this, a mistake that is clear on the face of it. It is sufficient to mention one example of this from the well-known case of Korematsu v. United States [185], in which United States residents and citizens of Japanese origin, who lived in the United States, were placed in detention camps in their own country, during the Second World War, when the United States was at war with Japan. There were individuals in that population group who were suspected of disloyalty to the state. In consequence, a general sanction of being placed in detention camps was imposed on a whole sector of the public. These sweeping measures were approved by a majority in the United States Supreme Court. The minority thought otherwise.

The justification for adopting these security measures was expressed in the majority opinion of Justice Black in terms that are reminiscent in their main aspects of the arguments of the state before us:

‘We cannot reject as unfounded the judgment of the military authorities and of congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained… It was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground’ (Korematsu v. United States [185], at p. 219).

And further on:

‘There was evidence of disloyalty on the part of some [citizens of Japanese ancestry], the military authorities considered that the need for action was great, and time was short’ (Korematsu v. United States [185], at pp. 223-224).

The minority judges, led by Justice Murphy, discussed the nature of the risk, as well as the need for a rational and proportionate correlation between the nature and scope of the risk and the measures adopted to guard against it:

‘In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporary or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways… no reliable evidence is cited to show that such individuals were generally disloyal…or had otherwise by their behavior furnished reasonable ground for their exclusion as a group’ (Korematsu v. United States [185], at pp. 235-236).

Further on, the minority judges explained the nature of the great danger inherent in sweeping arrangements that involve whole sectors of the public indiscriminately:

‘… to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights… is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow’ (Korematsu v. United States [185], at p. 240).

The ruling of the majority of justices of the United States Supreme Court in the case of Korematsu v. United States [185] is considered by many to be one of the darkest episodes in the constitutional history of western countries (see, for example, E.V. Rostow, ‘The Japanese American Cases – A Disaster,’ 54 Yale. L. J. 489 (1945); L. Braber, ‘Comment: Korematsu’s Ghost: A Post-September 11th Analysis of Race and National Security,’ 47 Villanova L. Rev. 451 (2002)).

The circumstances in that case are completely different from those in our case, but the wind that blows in the background of the constitutional approach that was applied there by the majority opinion is not foreign to the arguments that were heard from the state in the case before us. We must take care not to make similar mistakes. We must refrain from a sweeping injury to a whole sector of the public that lives among us; it is entitled to constitutional protection of its rights; we must protect our security by means of individual scrutiny measures even if this imposes on us an additional burden, and even if this means leaving certain margins of a probability of risk. We will thereby protect not only our lives but also the values by which we live (Saif v. Government Press Office [86], at p. 77 {198}).

Conclusion

22. No one will deny the seriousness of the security situation in which we find ourselves, and the supreme task imposed on the state to protect the lives of its citizens. At the same time, just as we must confront the danger to life and defend ourselves against it, so too we must protect ourselves against the danger of losing security in our values and in the protection of human rights. We must beware the erosion of human rights against the background of security arguments by not maintaining the proper proportion between them. Without insisting on this proportionality, the constitutional approach that protects human rights may be eroded; consequently, cracks may appear in the foundations of our constitution; democratic patterns of life in Israel may be prejudiced and the recognition of human dignity and the right to realize one’s identity may be undermined. We must take care not to be carried away by security arguments like blind persons in the dark, where doing so leads to a violation of a human right. We must examine their credibility and strength in accordance with reliable figures, and assess it in accordance with the tests of logic, common sense and the rules of probability.

In this case, I do not agree with the view that the security need should be adopted to the degree and extent argued by the state. I see a significant gap between the strength of the security consideration as alleged by the state, and the strength of the violation of human rights of the first order which is caused by the law. Therefore I am most strongly of the opinion that the security consideration should yield to the human right. But even so, there is no basis for a balance in absolute values, but in relative values. Therefore, the change from a blanket prohibition (apart from a few exceptions) against the entry of Palestinian spouses into Israel, which is currently enshrined in the law, to a system of individual checks to locate an individual potential danger reflects the proper point of balance. The relative strength of the security consideration ought also to cast light on the measures for individual checks that should be put into operation for the purpose of providing entry permits to persons applying to be reunited with their Israeli spouses, and also on the supervisory methods that should be introduced with regard to Palestinian spouses whose entry is permitted, while they are living in Israel. The relative strength of the security consideration should also cast light on the relevant tests and criteria that should be made a necessity in these matters.

23. I agree with the president’s conclusion concerning the voidance of the law, and the details of the relief proposed by him.

 

 

Justice A. Grunis

1.    I agree on the whole with the opinion of my colleague Vice-President Emeritus M. Cheshin. From this it is clear that my opinion is different from that of my colleague President A. Barak. I will add certain emphases of my own that clarify the disagreements between my opinion and that of my colleague the president.

2.    My colleague the president defines very broadly the constitutional right to family life (as a part of human dignity). He includes within it the right of the Israeli spouse to bring his foreign spouse into Israel, even if he is a national of an enemy state, in order that the couple can have a family life in Israel. After finding that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the law) violates the constitutional right, the president goes on to examine whether the conditions of the limitations clause are satisfied. The position of my colleague President Barak in the present case is consistent with his approach in other cases, in which a question arose as to the scope of the constitutional right (in general, with regard to the outlook of my colleague the president in this regard, see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at pp. 369-390). This is the case, for example, with regard to the scope of the right of property (s. 3 of the Basic Law: Human Dignity and Liberty) and freedom from imprisonment (s. 5 of the Basic Law: Human Dignity and Liberty). In the first case, the president apparently includes, within the scope of the right of property, every property interest (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 431); HCJ 5578/02 Manor v. Minister of Finance [158]). In the second case, the approach of my colleague the president leads to the result that every new criminal law that includes a penalty of imprisonment, and every case where legislation makes a penalty of imprisonment stricter, violates the basic right (Silgado v. State of Israel [107]). By contrast, my colleague the vice-president emeritus disputes the scope of application of the constitutional right under discussion. In his opinion, the right to family life does not include the right of an Israeli citizen to family reunification with the foreign spouse in Israel, especially not at a time of war or armed conflict with the country of the foreign spouse. The very broad definition of the constitutional right, according to the approach of my colleague the president, leads to the conclusion that many laws will be regarded as violating constitutional rights and will therefore be required to satisfy constitutional scrutiny, i.e., the conditions of the limitations clause. The outcome may be a degradation of constitutional rights. Moreover, a practical problem may arise with regard to the ability of the courts to deal on a daily basis with constitutional claims (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 332 (per President Shamgar), and at pp. 470-471 (per Justice I. Zamir); Israel Investment Managers Association v. Minister of Finance [8], at p. 419 (per Justice D. Dorner)). Even if we accept the broad approach of my colleague the president in so far as the right to family life is concerned, the argument may be raised that in the present case this right conflicts with another constitutional right, the right to life (s. 2 of the Basic Law: Human Dignity and Liberty). Then the question arises whether there is a justification for turning to a scrutiny of the law in accordance with the conditions of the limitations clause, or whether the conflict should be resolved without referring to the limitations clause, and certainly without referring to all of its constituent parts. The response to a conflict between two constitutional rights lies in what is sometimes referred to as a ‘horizontal balance.’ It is possible that within the framework of examining this conflict or contradiction, it will be necessary to refer to the proportionality tests. Of course, that scrutiny will necessarily lead to the restriction of one of the conflicting rights on account of the other. In any event, for the purposes of the present case I am prepared to assume, according to the approach of my colleague the president, that the law violates the Israeli spouse’s constitutional right to family life, because it does not allow him to bring the Palestinian spouse who lives in the territories into Israel.

3.    My two colleagues, the president and the vice-president emeritus, find that the law does not raise any problem with regard to the first three conditions in the limitations clause, namely the requirement that the violation should be made in a statute or in accordance with statute by virtue of an express authorization therein; the requirement that the violating law should befit the values of the State of Israel; and the requirement that the law is intended for a proper purpose. They also agree that the law satisfies the first two subtests of the proportionality test that are included in the limitations clause. Thus, they find that there is a rational connection between the prohibition against the Palestinian spouse entering Israel, which is the measure adopted by the law, and the reduction of the security risk inherent in the entry into Israel of the foreign spouse, which is the purpose of the law. They also find that it is not possible to achieve the purpose of the law by adopting a less harmful measure. The issue in the concrete case before us is the blanket prohibition in the law against the entry into Israel of Palestinian spouses as opposed to an individual check of the foreigners who marry Israelis. An individual check of each person will not achieve the same level of security that will be provided by a blanket prohibition.

4.    The disagreement between my colleagues focuses on the implementation of the third subtest in the test of proportionality. Sometimes this test is referred to as that of proportionality in the narrow sense. This test examines the correlation between the social benefit of the law and the harm caused by the violation of the constitutional right. The President dissects the case with a surgeon’s scalpel, or perhaps we should say with a laser beam, and says that ‘the proper way of posing the question is by means of the level of the risks and the likelihood that they will occur, and their effect on the life of society as a whole’ (para. 110 of his opinion). Further on, the test in the concrete case is presented in the following words: ‘The question is what is the probability that human life will be harmed if we continue the individual check as compared with the likelihood that human life will be harmed if we change over to a blanket prohibition, and whether this additional likelihood is comparable to the certainty of the increase caused thereby to the violation of the rights of spouses who are citizens of the state (ibid.). The answer of my colleague the president is that the additional security is not commensurate with the additional violation of the right of citizens of the state to family life. By contrast, the opinion of my colleague the vice-president emeritus is that since we are dealing with the right to life, it should be given greater weight in relation to the constitutional violation. I disagree with my colleague the president in two respects, both with regard to the presentation of the question as a question of probability and in the implementation of the test.

5.    There is no doubt that presenting the test of proportionality in the narrow sense as a test of probability contributes to the development of the law and our conception of the value conflict underlying the test. The test that the president presents is reminiscent of the well-known test formulated by Judge Learned Hand with regard to the tort of negligence (United States v. Carroll Towing Co. [207]). According to the equation developed by Judge Hand, negligence exists if the expectation of the damage (the amount the damage multiplied by the likelihood of its occurrence) is greater than the cost required to prevent the damage (the aforesaid test was mentioned in CA 5604/94 Hemed v. State of Israel [159], by President A. Barak, at pp. 510-511, and also by Justice E. Rivlin, who pointed to its application in the constitutional context as well, at pp. 517-521); see also A. Porat, ‘Negligence and Interests,’ 24 Tel-Aviv University Law Review (Iyyunei Mishpat) (2001) 275). The presentation of the question that requires a decision as a kind of mathematical equation has a great deal of sophistication and it advances the legal analysis. The use of imagery, such as ‘equation,’ ‘balance,’ ‘weight,’ etc., is common in legal writing. Metaphors help us understand better when we are dealing with abstract concepts. But let us not forget that we are dealing with law, and not mathematics. In any case, in the matter before us it is my opinion that no question of probability arises with regard to injury to human life. The figures that were presented to us show that twenty-six Palestinian spouses who entered Israel lawfully by virtue of the family reunification process were involved in terror attacks. In those attacks, dozens of people were killed and many others were injured. It should be noted that those twenty-six received a permit to enter Israel notwithstanding the security check that they underwent. This means that we have before us proof that the individual security check does not guarantee that it is possible to distinguish fully between those persons who constitute a security risk and others whose entry into Israel does not constitute a risk. On the basis of these figures, I believe that it can be said that there is a certainty that the entry of thousands of additional spouses will lead to harm to human life, even if a security check is carried out with regard to each individual. Of course, there is no way of saying what will be the scope of the harm, and with regard to this question of scope we are not dealing with probability but with a mere guess. The equation is not made up, therefore, of a probability on one side and a certainty on the other, but of two certainties: harm to human life as opposed to harm to family life. It is possible to summarize the approach of my colleague President A. Barak with the expression ‘Where a certainty conflicts with a possibility, the certainty prevails.’ By contrast, according to my approach the situation is one of two certainties, and therefore a different response is required. We should admit that presenting the dilemma in such stark terms is somewhat misleading. There are various situations in which the value of human life conflicts with other values and interests, and notwithstanding this a decision is made, sometimes rationally and sometimes intuitively, to prefer the other value or interest. Thus, for example, there is no argument that a blanket prohibition against travelling by motorized vehicles on the roads and a return to the days of carriages will significantly reduce the number of persons killed and injured in road accidents. Nonetheless, it can be assumed that a proposal to this effect will not be adopted in a modern society.

6.    Even if I accept the approach of my colleague the president according to which the equation has a probability component on one side, I cannot agree with the outcome that he has reached. According to the president, the additional security obtained from the blanket prohibition of the entry of spouses, as compared with the degree of security obtained from an individual check, is not commensurate with the additional damage to the Israeli spouses as a result of the violation of their right to family life (para. 112 of his opinion). Even if I use exactly the same test used by the president, my conclusion is that the additional security obtained from the blanket prohibition justifies the additional violation of family life. In this context it should be noted that disagreements on this point are an example of the situation in which different judges make use of the same verbal formula as a legal test but arrive at different results. The difference in the result derives, inter alia, from the different relative weight given to the conflicting values and from the different quantification of the figures. In mathematical terms, even if we agree upon all the variables of the equation, it is clear that there is no consensus on the ‘numerical values’ that should be attributed to those variables. And in addition to all this, we should mention the problematic nature of relying on probability, namely, estimating the likelihood of the occurrence of uncertain events (in this context, see, inter alia, D. Kahneman et al., Rationality, Fairness, Happiness — A Selection of Articles, M. Bar-Hillel, ed., 2005, especially in chapter 2).

7.    Dealing with concepts such as probability, likelihoods and estimates necessarily raises the question of what is the constitutional margin of appreciation when scrutinizing the law. It would appear that anyone who is familiar with this margin will admit that it is not static with fixed limits. These limits are affected by various factors, including the subject-matter of the law and the degree of expertise of the court in the field (cf. HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [160], at pp. 57-58). Thus, for example, with regard to economic issues we can say that the legislature and the executive have a relatively large margin of appreciation, inter alia because we are concerned with decisions that involve an element of uncertainty and professional considerations that are outside the expertise of the court (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 575 (per Justice Goldberg); Israel Investment Managers Association v. Minister of Finance [8], at pp. 388-389; Menahem v. Minister of Transport [11], at p. 263). The same is true with regard to a security assessment that is dependent on many factors and variables (Gaza Coast Local Council v. Knesset [6], at pp. 572-576). An additional factor that should be taken into account and that may affect the constitutional margin of appreciation is the fear of judicial error. I will now consider this issue.

8.    My colleague the president is of the opinion that ‘a mistake by the judiciary in a time of emergency is more serious than a mistake of the legislature and the executive in a time of emergency. The reason for this is that the mistake of the judiciary will accompany democracy even when the threat of terror has passed, and it will remain in the case law of the court as magnet for the development of new and problematic rulings. This is not the case with mistakes by the other powers. These will be cancelled and usually no-one will remember them’ (para. 21 of his opinion). This implies that a determination that the law is valid and should not be removed from the statute book would be a mistake whose consequences will accompany the state in the future, possibly even after the period of war and terror ends. But we must consider the fear of judicial error from both sides, i.e., not merely from the viewpoint of an error that concerns a determination that the law is constitutional, but also from the viewpoint of an error that concerns the opposite determination — that the law does not satisfy the constitutional test. Indeed, if the petitions before us are denied and it is held that the law remains valid, there will be a violation of the right to family life of an unknown number of Israeli citizens. On the other hand, if the petitions are granted and it is held that the law is not valid, there will be a violation of the right to life and physical and emotional integrity of an unknown number of persons. Since we are dealing with unknowns on both sides of the equation, there is no alternative to taking into account the possibility of error. In my opinion, greater weight should be attributed to a fear of error on the side of the equation containing the right to life. In the words of Dr G. Davidov:

‘When the harm that would be generated by a judicial mistake is especially severe, courts should raise the bar before striking the legislation down’ (G. Davidov, ‘The Paradox of Judicial Deference,’ 12 Nat’l J. Const. L. 133 (2001), at p. 161; see also Irwin Toy Ltd. v. Quebec (Attorney General) [217]).

9.    In the present case, not only is there a fear of error that may cause serious harm, but the error is close to being irreversible. According to the figures provided by the state, over the years thousands of applications for family reunifications were approved in cases where the foreign spouse was a resident of the Palestinian Authority. It follows that until now many thousands of residents of the Palestinian Authority have come to live in Israel lawfully. If it is held that that law is void, it can be expected that many additional thousands will become, at the end of the process, citizens or permanent residents in Israel. Let us imagine that in several years it becomes clear that the court’s declaration that the law is void was an error that caused serious harm. By this I mean that it will be found that the number of foreign spouses who were involved in terror activity is higher than was thought at the time of making the judicial decision. If, heaven forbid, this happens, it will be very difficult to turn the clock back. In other words, even if according to the approach of my colleague the president there will be a justification at that time for a blanket prohibition, it appears that it will be possible to apply it prospectively, whereas applying it to those persons who have already entered Israel lawfully will be very difficult, if not impossible. According to my outlook, since the mistake may cause serious harm and certainly because of the great difficulty in remedying it, such that it is almost irreversible, the law must be left to stand.

10. Even if the current relationship with the Palestinian Authority is not defined as a war, but as a quasi-war (in the language of my colleague Vice-President Emeritus M. Cheshin) or perhaps as an armed conflict between a state and a political entity, it is not possible to ignore the security dangers that are inherent in the entry of thousands of enemy nationals into Israel. We are not speaking of entering Israel for the purpose of employment, which is by nature temporary, and in any case this can be prevented in accordance with the circumstances. The entry of thousands of spouses into Israel, when the purpose is to take up residence in Israel and to receive, at the end of the process, citizenship or permanent residency, requires special consideration, in view of the background of the security position. Who was endowed with such an impressive prophetic ability that he foresaw, at the time of the first intifada, which was an intifada of stones, that we would reach a time when Palestinian suicide bombers would explode themselves in the streets of our cities? Who imagined, not so long ago, that the Hamas movement would come to power in the elections that took place in the Palestinian Authority? These two examples, and it is possible to give many more, indicate the need for great caution and restraint when scrutinizing legislation that is intended to deal with an acute problem, at a time of an armed conflict of the kind that is taking place between Israel and the Palestinian Authority. My colleague the president has repeatedly said that ‘human rights are not a recipe for national suicide’ (for example, Neiman v. Chairman of Elections Committee for Eleventh Knesset [87], at p. 310 {161}; CrimA 6696/96 Kahane v. State of Israel [161], at p. 580; LCA 6709/98 Attorney-General v. Moledet-Gesher-Tzomet List for Elections to Upper Nazareth Local Authority [162], at pp. 360-361; see also Kennedy v. Mendoza-Martinez [208], at pp. 160-161, which is mentioned in HCJ 448/85 Dahar v. Minister of Interior [163], at p. 716). In my opinion, that statement is appropriate in this case.

11. The opinion of my colleague the president abounds, as usual, in citations from all parts of the world and is full of references to many thinkers and scholars. Notwithstanding, my colleague the president does not point to even one example of a country that has allowed the entry of thousands of enemy nationals into its territory for any purpose at a time of war or at a time of an armed struggle. Certainly there is no example of a court that ordered a state to allow the entry of thousands of enemy nationals into its territory. I shall conclude by citing the remarks of Lord Hoffmann (which were admittedly said with regard to an administrative decision and not with regard to the disqualification of a law, but which are apt in our case):

‘… In matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove’ (Secretary of State for the Home Department v. Rehman [228]).

These words of warning ought themselves to be adopted with caution, in case the line is crossed in such a way that the court shrugs off the constitutional role that is placed on its shoulders. Giving excessive weight to security concerns may, indeed, result in a disproportionate violation of human rights. We are dealing with matters that cannot be measured accurately. In the final analysis, the question is one of taking risks. The decision in this case is very difficult, because it is not possible to reconcile the basic values in the concrete case. But since we are called upon to make a decision, we cannot avoid doing so. In my opinion, the risks that will result from disqualifying the law require the court to refrain from declaring it void even if the alternative is a violation of a human right.

12. It is therefore my opinion that the petitions should be denied.

 

 

Justice M. Naor

In my opinion, like that of Vice-President Emeritus M. Cheshin, the petitions should be denied.

Preliminary remarks

1.    In recent years, terror has not only been the exclusive or almost exclusive possession of Israel. The beginning of the current century has been characterized by a terror barrage of great strength at various focal points in the world. On occasions, terror has hit democratic countries without prior warning. The events of September 11 in the United States will not be forgotten quickly. Many countries have taken action, adapted themselves to the new reality that was forced upon them, and within this framework changes have also been made to legislation. Let us mention, without being exhaustive, several examples from around the world: in the United States, the Patriot Act of 2001, or, in its full name, the Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001; in the United Kingdom, the Anti-terrorism, Crime and Security Act, 2001; in Australia, the Security Legislation Amendment (Terrorism) Act, 2002; and in Canada, the Anti-terrorism Act, 2001.

2.    Following the events of September 11, the attitude of the United States to terror and the war on terror changed radically. As a result, many countries have been affected. There are some who believe that terror has led those countries to ‘legislation that is a result of hysteria’ (E. Gross, The Struggle of Democracy against Terror — Legal and Moral Aspects (2004), at p. 679). But, as my colleague the president said, ‘Israel did not need the events of September 11, 2001, in order to formulate its position with regard to terror. We had terror on September 10, 2001, and on many previous occasions, and we had terror on September 12, 2001, and many other occasions since’ (ibid., ‘Introduction by Aharon Barak,’ at p. 25). The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the law) — whose constitutionality we are now scrutinizing — is a part of a series of measures that Israel has adopted to protect the lives of its residents, whose constitutionality it has scrutinized and is scrutinizing in this court. We have not said, nor will we, whether the legislation that we mentioned would pass the tests of constitutional scrutiny. Legislation that imposes restrictions in relation to the previous position, such as the war on terror legislation, is legislation that is by its very nature ‘ripe’ for judicial review of the constitutionality of the law. A good example of this can be found in the judgment of the House of Lords in A v. Secretary of State for the Home Department [229], in which the violation of the right to liberty did not pass constitutional scrutiny. Indeed, constitutional scrutiny in Israel is exercised equally in times of peace and in times of war. We must be aware, inter alia, of the fact that sometimes, because of the pressure of the times, the response to war or terror may be exaggerated. This was discussed by Lord Hoffmann (ibid. [229], at pp. 86), where he said that with the benefit of hindsight, measures that were adopted in the time of Napoleon and in the two world wars were found to have been cruelly and unnecessarily exercised.

3.    All of us, both those who wish to declare the law void and those who (like me) oppose this, are aware of the warnings provided for us by history. It was not for nothing that my colleague Justice Beinisch said that the decision in the petitions before us are some of the hardest decisions that have been placed before us in recent years. We are making this decision with some unease. Indeed, the armed conflict presents significant challenges especially to the continuing protection of human and civil rights in a society that regards itself under threat and in real danger. The judicial scrutiny that we exercise with regard to the constitutionality of the law in our case, in the middle of an armed conflict between the State of Israel and the terror organizations originating in the areas of the Palestinian Authority, is the same judicial scrutiny that this court exercises with regard to the constitutionality of laws in times of calm and normality. As my colleague the president says, Israeli constitutional law has a consistent approach to human rights in times of relative quiet and in times of increased combat (for a similar position in the constitutional law of the United States, see and cf. Ex parte Milligan [209], at p. 120). At all times we remember that ‘there is no security without law. The rule of law is a component of national security’ (HCJ 428/86 Barzilai v. Government of Israel [164], at p. 622 {104}). At the same time, we remember that ‘a constitution is not a prescription for suicide’ (Neiman v. Chairman of Elections Committee for Eleventh Knesset [87], at p. 311 {162}). The rules of constitutional scrutiny are not absolute rules. Different judges are likely to reach different conclusions. The case before us (and other cases) prove that. My position is, as aforesaid, that there is no basis for declaring the law void. I will now clarify my position.

(1) Constitutional scrutiny — first stage: does the Citizenship and Entry into Israel Law violate a constitutional right

(a) The right to family life

4.    The key question in dispute here is whether the Israeli spouse has a constitutional right, as a part of human dignity, to realize family life with a foreign spouse in Israel? On this question our opinions differ. In my opinion, the Israeli spouse does not have a constitutional right, as a part of human dignity, to realize family life with the foreign spouse particularly in Israel. We are concerned with the interpretation that should be given to human dignity as a constitutional right. Even according to my approach, the right to family life is a constitutional right derived from the constitutional right to human dignity. But it does not include the additional derived right — namely the right to realize family life particularly in Israel. The right to family life is not an independent and express right in the Basic Law: Human Dignity and Liberty, and the additional derived right as aforesaid does not have a close objective connection to human dignity. The interpretation of ‘human dignity’ should not be stretched beyond endurance. In my opinion, it is not possible to determine that there is international recognition of a right of the citizen or the resident — as a constitutional right — to bring his foreign spouse to his country. From comparative law such a recognition of a constitutional right cannot be deduced.

5.    My colleague the president in practice reinterprets art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in accordance with the interpretation that seems to him appropriate. In my opinion, there is great importance to the question whether European countries de facto regard the right to family reunification in the country of the European spouse as a constitutional right. The answer to this question is, in my opinion, no. Thus, for example, the European Court of Human Rights held that art. 8 of the Convention had not been breached in a case where an application of a Dutch citizen (born in Morocco) to receive a permit for his son who was born in Morocco was refused, and it was held that the state should not be held to have a general duty to allow ‘family reunifications’ as aforesaid:

‘Where immigration is concerned, Article 8… cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory’ (Ahmut v. The Netherlands [236], at para. 67).

In another case, the European Court of Human Rights discussed how a state should not have a duty imposed upon it to allow ‘family reunifications’ in its territory:

‘As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory … Moreover, where immigration is concerned, Article 8… cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory’ (Gül v. Switzerland [237], at para. 38).

In that case, the European Court of Human Rights discussed the difficulty of defining what are the duties imposed on the state within the framework of art. 8 of the Convention and the right to family life, and it also discussed the need to find a balance within the framework of the article between the interest of the individual and the interest of the community, while holding that the state should be given a ‘margin of appreciation:’

‘The Court reiterates that the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision (art. 8) do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation’ (ibid. [237]).

In practice, already in Abdulaziz Cabales and Balkandali v. U.K. [235], which was discussed by my colleague the vice-president, the European Court of Human Rights held that art. 8 of the Convention does not oblige a state to allow the foreign spouse into its territory:

‘The duty imposed by Article 8 (art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country’ (Abdulaziz, Cabales and Balkandali v. United Kingdom [235], at p. 28).

In the United States also the desire to bring in the foreign spouse does not have constitutional protection and it is not capable of compelling the state to allow family reunifications (‘… Americans have no constitutional right to compel the admission of their families’ (Fiallo v. Bell [190], at p. 807)). What is more, the court in the United States does not intervene anyway in legislation concerning immigration, as it said in that case:

‘At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. “This Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens’ (ibid. [190], at p. 792).

As Rubinstein and Orgad have said: ‘There is no express and concrete right in international law that creates a positive obligation for the state to allow immigration into its territory for the purposes of marriage, even in times of peace’ (A. Rubinstein and L. Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006), at p. 340). Rubinstein and Orgad discuss in their article the work of Arturo John, which was devoted to a survey of this issue in international and European law. They pointed out that ‘the author give examples of how any international document that prima facie grants this possibility immediately qualifies it or provides conditions and restrictions that empty it of content. It is the prerogative of states and within the framework of their sovereignty. It is an ideal and humanitarian aspiration more than a legal duty’ (ibid., at p. 340, note 107). With regard to the European directive of 2004, which is mentioned in the opinion of the president, it is stated that it admittedly increased the possibility of immigrating to the European Union for the purposes of marriage, but at the same time it allowed ‘broad discretion for states to determine conditions and restrictions around this possibility’ (ibid., at p. 332). Rubinstein and Orgad also say that ‘the European Court of Human Rights has given its backing over the years to the right of states to restrict immigration as a result of marriage; its case law reflects an approach according to which sovereign states may manage their immigration policy in accordance with their discretion and by determining various restrictions and conditions’ (ibid., at p. 338). And all of this is even in the absence of an armed conflict or national dispute in the background.

In my opinion, there has been no broad recognition in the countries of the democratic world to the effect that the citizen or resident has a right to bring to his place of residence the other spouse. It is possible that this amounts to an aspiration that may be realized in the future.

6.    In Israel too, the scope of the right to realize family life particularly in Israel, in so far as such a right is recognized, involves a question of the scope of the duty imposed on the state (cf. with regard to the ‘right to social insurance’ and the ‘right to health insurance,’ the remarks of my colleague the president in HCJ 494/03 Physicians for Human Rights v. Minister of Finance [165]). In our case, my colleague the president holds that the state has a duty to allow the foreign spouse to enter and live in Israel together with his Israeli spouse. My opinion, like that of the vice-president, is that the proper interpretation of human dignity imposes a more limited duty on the state. I will now turn to this issue.

7.    When an Israeli citizen wants to marry a foreign national and to establish a family unit in Israel the question of immigration necessarily arises, and this includes the question of immigration by virtue of the right to family life. When the spouses do not live in the same country, the question of the scope of the right to family life and questions from the sphere of immigration law are questions that cannot be separated from one another. My colleague the president wrote in the context of immigration law that ‘the Minister of the Interior is the “doorkeeper” of the state’ (HCJ 8093/03 Artmeyer v. Ministry of Interior [166]), and that ‘the state has broad discretion to prevent foreigners from settling in Israel’ (Dimitrov v. Minister of Interior [113], at p. 293).

8.    The interpretation proposed by my colleague the president with regard to the scope of the right to family, an interpretation that recognizes a constitutional right to realize family right in Israel, has far-reaching consequences. The interpretation will necessarily limit the power of the Minister of the Interior to be a ‘doorkeeper.’ How can the Minister of the Interior be a doorkeeper if the ‘keys to the house’ are in the possession of every citizen?

Indeed, my colleague the president examines the right, and correctly so, from the viewpoint of the Israeli citizen and not from the viewpoint of the foreigner. But the scope of the right as determined by my colleague the president, according to which there exists a right, and a corresponding duty of the state, to allow an Israeli to bring his foreign spouse to Israel creates a ‘collision zone’ between the right to family life (according to the president) and the right of the state to determine who will enter it (which is based on a host of cases, as mentioned by my colleague the vice-president in para. 50 of his opinion). Indeed, ‘the right of states to determine selective and restrictive conditions for immigration is regarded as a part of its sovereignty’ (Rubinstein & Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ supra, at p. 330), and it has been held that ‘a person who wishes to enter a sovereign state must overcome one barrier: the absolute discretion of the immigration authorities in each place to approve or not to approve his entry and to determine the length of his stay in the state’ (Pesaro (Goldstein) v. Minister of Interior [130], at p. 678).

9.    Thus we see, from the determination of the scope of the right by the president, that in the ‘collision zone’ the right to realize family life in Israel necessarily prevails, de facto, over the sovereignty of the state. In my opinion, we must refrain from this collision. If we do not ‘stretch’ the interpretation of ‘human dignity’ as aforesaid, and derive from it the scope of the constitutional right to family life, we will indeed be able to avoid this collision. ‘Human dignity as a constitutional right was not intended to make the other constitutional rights redundant. Not every human right, which is recognized in constitutions concerning human rights, is included in human dignity… We should refrain from extending human dignity in such a way that it will reflect Utopia or it will make specific human rights redundant’ (A. Barak, ‘Human Dignity as a Constitutional Right,’ A Selection of Articles (2000) 417, at p. 437). In a similar vein Justice Zamir said:

‘In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that see many aspects in the Basic Law. This is particularly so with regard to the right to dignity. The same is true of legal literature. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, seemingly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: “Study it from every aspect, for everything is in it” ’ (Israel Women’s Network v. Government of Israel [66], at p. 536 {468}; emphases supplied).

10. It should be noted that this scrutiny, which I have considered above, considers the question whether there is in Israel a constitutional human right to bring the foreign spouse to Israel, irrespective of security considerations of the existence of an armed conflict with the country of the foreign national. But it is obvious that even when the state has no duty to allow family unifications, it may adopt a policy that allows it. This is how we have acted in Israel, as described in Stamka v. Minister of Interior [24]. However, the question is not how various states act de facto. The question is whether the state has a duty.

(b) The right to equality

11. The key question in this context is whether the right of the Arab-Israeli spouse to equality has been violated?

The right to equality, in several aspects thereof, is a constitutional right that is included in human dignity (Movement for Quality Government in Israel v. Knesset [51]). It can be said that in our case the right to equality is violated prima facie; a Jewish citizen Moses is allowed to bring to Israel his wife who, for example, is a Romanian national (who is not Jewish and has no independent right to immigrate to Israel by virtue of the Law of Return), whereas an Arab citizen Musa is not allowed to bring to Israel his wife who is a resident of the territories under the age of 25. The result is, prima facie, that Moses and Musa are treated differently, and Musa is discriminated against. Notwithstanding, if it was Musa who married the Romanian national and Moses who married the resident of the territories, the positions would be reversed, and Moses would be the one discriminated against. To this my colleague the president responds that in general and subject to (negligible) exceptions it is Arab citizens who marry women from the territories (and Arab women citizens who marry men from the territories), whereas Jewish citizens do not marry women from the territories. Therefore, according to the end result, there is prima facie discrimination between Moses and Musa and a violation of the right to equality. The end result captivates the attention, but in my opinion there is in the final analysis no discrimination, because of the existence of a relevant difference. A distinction based on relevant reasons does not violate human dignity, since such a distinction does not, in itself, constitute discrimination. In this matter I accept the reasoning of my colleague the vice-president. In my opinion too the distinction on which the law is based is the security risk to citizens and residents of the state in giving a status in Israel to the foreign spouse who is a resident of the territories (as apposed to the foreign spouse who is not a resident of the territories), because of the armed conflict between Israel and the Palestinian Authority, and this distinction is a relevant distinction. This was also discussed by Rubinstein and Orgad, who pointed out that in the circumstances before us ‘… the usual rule that is accepted worldwide according to which a state may prohibit the entry of nationals of an enemy state into its territory’ applies. Similarly, it is said there that:

‘Clearly in practice not every citizen of an enemy state wishes to harm the state that he wants to enter, but it is accepted that the citizens of an enemy state, because of their connections with their state, their duty of loyalty to it and their dependence on its government, and well as those of their families, constitute a risk group that no state is liable to allow into its territory at a time of an active armed conflict between the two states. Serious prohibitions and restrictions — including a prohibition against marriage migration and family reunifications — are imposed on the entry of nationals of unfriendly countries even in the absence of war or combat… Admittedly, the Palestinian Authority is not a state… But it should be regarded, at least, as a “quasi-state” in view of its ability to harm the security of Israel and the lives of its residents on a large scale… When a “state on the way” begins an armed conflict, while it is “on the way” to independence and in the middle of negotiations concerning its establishment, with another state, it is treated, for this purpose, as an enemy state; its nationals, for this purpose, are treated as the nationals of an enemy state’ (ibid., at pp. 317-318; emphases supplied).

12. The distinction is therefore a relevant distinction, and therefore the right to equality has not been violated. Likewise, we are not concerned, as alleged, with discrimination on the basis of origin or race. We are dealing with a relevant difference against a background of foreign nationality, within the framework of the struggle against terror (cf. Macabenta v. Minister for Immigration and Multicultural Affairs [214]). The law does not apply to an ethnic-national group but to the residents of the territories, from which hostile acts are being waged against Israel (Rubinstein & Orgad, ibid., at pp. 323-324). It should be noted that the law does not prevent Arabs who are Israeli citizens from having ‘family reunifications’ with persons who are not residents of the territories. As P. Heymann and J. Kayyem say in their book, Protecting Liberty in an Age of Terror (2005):

‘A distinction based on nationality also has some rational justification in terms of combating terrorism. It is not unreasonable to assume, that, with the possession of a passport from a certain country, the passport holder has a loyalty to that particular country. If such a state is a terrorist-supporting state, or at least tolerant of terrorism against the United States, then people holding its passport are more likely to be supporting terrorist groups’ (at p. 102).

And they go on to say:

‘In light of the danger of emigration for terrorist purposes, we would allow consideration of the original nationality where the newly adopted nation is less than vigorous in opposing terrorism’ (at p. 103).

13. Beyond what is required in this matter, it should be noted that a violation of a constitutional right to family life in Israel (assuming that this exists) is not the same as a violation of a constitutional right to equality. If there is a constitutional right to family life in Israel, it can only be violated in accordance with the limitations clause. If, by contrast, the constitutional right to equality is violated, it is possible to remove the violation by comparing the status of the two groups: the group that is being discriminated against as compared with the comparative group (HCJ 4906/98 Free People Society for Freedom of Religion, Conscience, Education and Culture v. Ministry of Housing [167], at pp. 520-522). For our purposes, if the possibility of family reunifications is cancelled for all citizens and residents of Israel, there will be no further basis for the claim of a violation of equality. Therefore, even if we assume that the law contains a violation of the right to equality, the legislature can recreate equality between the groups in this way.

Interim summary

14. The conclusion that arises from all of the aforesaid is that in my opinion the law does not violate constitutional human rights that are enshrined in the Basic Law: Human Dignity and Liberty.

The scrutiny from this point onward will be based on the assumption that a constitutional human right has been violated. Even on this assumption I am of the opinion that in our case the conditions of the limitations clause have been satisfied. I will now turn to consider the second stage of the constitutional scrutiny.

(2) The constitutional scrutiny — second stage: is the violation of the constitutional right lawful (limitations clause)?

15. In the second stage of the constitutional scrutiny, the main dispute between the president and the vice-president concerns the question whether the violation of the constitutional right satisfies the fourth condition of the limitations clause — ‘to an extent that is not excessive’ (‘the condition of proportionality), and the disagreement focuses on the third sub-condition of proportionality (the test of proportionality in the narrow sense). The President (in para. 109) presented the question in dispute as follows: is the additional security (ob'tained by changing over from the individual check to the blanket prohibition) proportionate to the additional violation of the human right (caused by this change)? According to the president, we are speaking of a question of probability. According to him, we must compare the probability of harm to life with the certainty of harm to family life. He determines that the risk arising from being satisfied with the individual check ‘is not so large’ that it can justify the serious and certain violation of the right to realize family life in Israel. Therefore, the law fails this test, and is disproportionate. This determination also is attractive. But in my opinion, in view of the facts before us, there is no real possibility, as opposed to a theoretical one only, of holding an effective individual check. In this regard, I disagree with the quantification of the strength of the security risk proposed by the president, and therefore I do not accept his conclusion, according to which the individual check achieves ‘slightly less security and much more protection to the rights.’

16. In the background we should constantly remember the painful figures presented by the state, according to which residents of the territories who hold Israeli documentation by virtue of marriage were involved in at least twenty-five major attacks and attempted attacks in which at least forty-five Israelis were killed and at least one hundred and twenty-four were injured (as set out in para. 113 of the opinion of the vice-president). It is well-known that ‘in the centre of human dignity lies the sanctity of human life and liberty’ (Movement for Quality Government in Israel v. Knesset [51], at para. 35 of the president’s opinion; see also HCJ 680/88 Schnitzer v. Chief Military Censor [168], at p. 629 {90}; CrimApp 537/95 Ganimat v. State of Israel [169]; M. Landau, ‘Law and Security,’ Landau Book, vol. 1 (A. Barak and E. Mazuz, eds., 1995), 117, at p. 120; H. Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ HaPraklit Jubilee Book 9 (5754), at p. 25 (A. Gavrieli and M. Deutch eds., 1993)). We should give the sanctity of life substantial weight, as befits the most exalted of rights.

17. At the same time, the weight of the opposite pan of the scales, which carries the ‘additional violation of human dignity’ is reduced, because the violation of the right to family life (in so far as it exists), even if it is ‘certain’ as the president says, does not exist in my opinion in the nucleus of the right to human dignity, and this should be reflected in the weight of this pan of the scales.

18. I am of the opinion that the disagreements between us on the question of whether the conditions of the limitations clause are satisfied or not lie, to a large extent, in different attitudes to the requirement for an individual check of the residents of the territories with whom the citizens or residents of Israel wish to be reunited. Some of us are of the opinion that such a check will be possible if only the financial resources are allocated for it; others (and I am among them) are persuaded that a real individual check is not possible at this time.

19. I will not deny that the difficulty that arises in these petitions, in my opinion also, is the placing of many persons (the residents of the territories of certain ages) under suspicion of supporting (in practice or at least in potential) terror activities against Israel. It is clear to everyone that this suspicion has no basis with regard to the vast majority of the residents of the territories. The approach of the law is not an individualistic one (someone is suspected of being a terrorist) but a collective one (someone is included in a population group from which terrorists or at least potential terrorists come). This approach, even though its arrows are aimed at foreigners and only indirectly at Israeli residents and citizens, does indeed present a difficulty. It would certainly be preferable, if it were only possible, to carry out an individual check, separate foreigners who do create a security risk from foreigners who do not create such a risk, and allow the entry of the latter.

But the respondents explain to us that it is not possible to ascertain, at this time, details concerning residents of the territories with whom Israelis wish to be united. This is because of the security difficulties, the lack of cooperation of the Palestinian Authority in preventing security dangers, the dependence of the Palestinian population on the mechanisms of the Palestinian Authority and restrictions in the intelligence required by the security establishment in order to determine specifically the level of dangerousness presented by each resident of the territories who wishes to enter Israel. We are not speaking here of a problem of financial cost. We are speaking of an operational inability to obtain information. Notwithstanding this difficulty, within the framework of the amendments to the law, the state took upon itself a significant risk with regard to the relatively older ages. Unlike my colleague the president, I do not think that from this we can deduce that an individual check is possible. The conclusion is that with regard to relatively older ages, the level of risk is lower.

20. In principle, I do not dispute the importance of making an individual check, where this is possible (see and cf. Saif v. Government Press Office [86]; an application for a further hearing was denied in HCJFH 4418/04 Government Press Office v. Saif [170]).

I do not dispute the remarks of my colleague the president that ‘a blanket prohibition of a right, which is not based on an individual check, is a measure that raises a suspicion of being disproportionate’ (para. 70 of the president’s opinion). As a rule I accept that a violation of a basic right will be suspected of being disproportionate if it is made on a sweeping basis rather than on the basis of an individual check. Notwithstanding, and I believe that my colleague agrees on this, there may be cases in which there is no alternative measure of an individual check. In our case, the state has shown substantial reasons to explain why if we require an ‘individual check’ to be carried out (in the absence of the possibility of obtaining information) this will lead to undermining the realization of the purpose of the law, which my colleague defined as a purpose ‘to reduce as much as possible the security risk presented by the spouse’ (para. 90 of his opinion). A substantial reason can sometimes make the measure chosen in the law pass the test of proportionality. As my colleague the president said in another case, with regard to determining a maximum age:

‘Indeed, the employer will find it difficult to satisfy the “smallest possible harm test” if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve’ (Association for Civil Rights in Israel v. Minister of Public Security [94], at p. 367 {11}; also see and cf. Shahin v. IDF Commander in Judaea and Samaria [103], at p. 214).

The substantial reasons in our case are, as aforesaid, that there is no practical possibility of carrying out an effective individual check. Rubinstein and Orgad say that it also is not ‘practical to demand that a state that is involved in an armed conflict should employ measures to collect intelligence in enemy territory (measures that often involve a risk to human life and are an integral part of the conflict itself), in order to deal with administrative applications of residents of those territories who wish to enter the state’ (ibid., at p. 323, note 33).

21. Even my colleague the president does not take the need for security checks lightly. He says (in para. 94 of his opinion) that if it is not possible to carry out the checks in one part of the territories or another ‘the individual check will be postponed until the check becomes possible.’ But the law in any case was enacted as a temporary provision. Indeed, during certain periods while the petitions were pending before us, it appeared that there was a reasonable chance of improving the relations between Israel and the Palestinian Authority. At the time of giving our judgment, this is not the case. It seems to me that the law in its current format as a temporary provision, and the possibility, to which my colleague the president agrees, of postponing the individual decision until the individual check becomes possible (para. 94 of his opinion) achieve, de facto, the same result.

In these circumstances, I agree with the determination of my colleague the vice-president that ‘cancelling the blanket prohibition in the law and replacing it with an arrangement of an individual check is likely to lead to quite a high probability of an increase in terror activities in Israel… In the task of balancing between a reduction of the killing, safeguarding life and guaranteeing the stability of the system of government, as compared with the damage caused to some of the citizens of Israel who wish to live with their foreign family members in Israel — and we should remember that the amendment to the law reduced the scope of the violation significantly — the benefit is, in my opinion, greater than the damage’ (para. 109 of his opinion).

22. At this stage, I feel myself bound to address some of the remarks of my colleague Justice Procaccia.

I accept, as aforesaid, that we should learn from history. In my opinion too, an individual check, when one is possible, is preferable to dealing with generalizations according to which a certain group (residents of the ‘territories’) is likely to produce terrorists or collaborators with terror.

But I am afraid that my colleague Justice Procaccia has gone too far. My colleague in her opinion issues a warning. She recalls the judgment in the case of Korematsu v. United States [185], which is infamous in the history of the American people. My colleague says, admittedly, that ‘the circumstances in that case are completely different from those in our case,’ but she immediately goes on to say that ‘the wind that blows in the background of the constitutional approach that was applied there by the majority opinion is not foreign to the arguments that were heard from the state in the case before us,’ and she warns us that ‘we must take care not to make similar mistakes.’ The outcome implied by these remarks is that in our case we are likely to make a ‘similar’ mistake, i.e., a mistake on the same scale as in Korematsu v. United States [185]. In this respect I think I ought to differ.

 In the case of Korematsu v. United States [185], approximately one hundred and twenty-thousand citizens and residents of the United States, who were of Japanese origin and lived along the Pacific coast (‘the West Coast’) were uprooted from their place of residence and livelihood and were placed in detention camps in the wildernesses of America. Most of them stayed there for more than four years (for a description of the injury to the citizens of the United States of Japanese origin, see A. Gottfeld, ‘The United-States Versus its Citizens of Japanese Origin: the Detention Camps in the United States in the Second World War,’ Introductions to the American Experience (2006) 127, at p. 130); for a description of the historical-legal context in the period of the Second World War, see also E. Gross, ‘Constitution and Emergency: Use of Emergency Powers in American History,’ American Democracy — The Real, the Imaginary and the False (2002, A. Gottfeld, ed.,) 197, at pp. 219-221). The liberty of citizens and residents of the United States of Japanese origin was violated, their dignity was trampled upon and they were robbed of their livelihood. How is it at all possible to compare these injuries to the injury to the Israeli citizen, as such, that at the present time he is not allowed — if his spouse is a resident of the territories between certain ages — ‘family reunification’ in Israel? The cases are light years apart. If we wish to make a comparison, we should ask the following: would Britain, during the Second World War, have allowed the entry of tens of thousands of Germans into Britain for the purpose of marriage with British citizens? Would the United States have allowed the entry of tens of thousands of residents of the Japanese Empire into the United States for the purpose of marriage with citizens of the United States after the attack at Pearl Harbour? Korematsu v. United States [185] considered entirely different questions. Korematsu v. United States [185] made a generalization, and everyone agrees that the treatment of the citizens of the United States of Japanese origin was improper, and that the United States Supreme Court made a mistake in its decision in this regard. But I cannot accept the argument to the effect that every time a generalization is made there must necessarily be a mistake, and not merely any mistake, but a mistake on the scale of the mistake in Korematsu v. United States [185]. Not every generalization is unjustified. This is a matter for judicial discretion.

23. In my opinion, where possible one should avoid generalizations. Indeed, the law implies a generalization that residents of the ‘territories’ of certain ages constitute a risk group and therefore their entry into Israel at this time should be prevented. But, as the state explained in its response, in view of the past, there is today no effective and practical way of isolating the dangerous persons from those who are dangerous by means of an individual check. Therefore, as I have explained, at this time we should not intervene in the generalization that the provisions of the law reflect.

(3) The constitutional scrutiny — third stage: the relief or remedy

24. Since I have reached the conclusion that no constitutional human right has been violated in our case, and even if one had, that violation would satisfy the conditions of the limitations clause, the result is that the law does not suffer from unconstitutionality. There is no basis for moving on to the third stage of constitutional scrutiny, which is the relief or remedy stage. Notwithstanding, I would like to join with the vice-president’s exhortation, in para. 125 of his opinion, that the state should consider, if the validity of the law is extended, adding to the law an exception according to which the Minister of the Interior will be permitted — if he sees a special humanitarian need and if there is no suspicion of a security risk — to consider giving a permit for the entry of a resident of the territories into Israel. I would add that the state should also consider, in my opinion, a significant increase of the age of minors to whom the prohibition in the law will not apply.

Conclusion

25. As stated above, my opinion is that the petitions should be denied.

 

 

Justice Y. Adiel

1.    ‘Voiding primary legislation whose purpose is the defence of national security, in the middle of an armed conflict, is an exceptional act that should be adopted only in exceptional cases requiring this’ (A. Rubinstein and L. Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006), at p. 327, note 43). In the case before us, I am not persuaded that there is a justification for adopting this exceptional step. The following are my reasons.

2.    According to the petitioners, the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the law) violates the constitutional rights to family life and equality.

3.    With regard to the right to family law, in view of the proximity of this right to the nucleus of the right to dignity, its centrality in the realization of the autonomy of the individual to shape his life and the case law of this court which is mentioned in the opinion of the president, I accept that the right of the Israeli spouse to family life in Israel together with his foreign spouse is indeed included within the framework of the right to human dignity within the meaning thereof in the Basic Law: Human Dignity and Liberty (hereafter — the Basic Law). Since the law prevents the realization of this right, it violates the right to dignity under the Basic Law.

4.    On the other hand, I do not think that the law violates the right of the Arab Israeli spouse to equality. Indeed, ‘a violation of the principle of equality… is also discrimination of an Arab because he is an Arab’ (Association for Civil Rights in Israel v. Government of Israel [40], at p. 27). But the refusal to grant a status in Israel to the foreign spouse is not based on the Arab origins of the Israeli spouse (nor on that of the foreign spouse). The logic of this refusal is that the foreign spouse is a resident of a political entity that is in a state of war or quasi-war with Israel, he is a member of a population that is hostile to Israel, and giving a permanent status in Israel to members of that population involves a real security risk to the Israeli public. Against this background, there is a relevant difference (see Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654), which justifies the distinction between Israelis (who are admittedly usually Arabs) that want their spouses who are residents of the territories to be allowed to enter Israel and to be given a status here, and Israelis who do not want this. This was addressed by Rubinstein and Orgad in their aforesaid article:

‘Preventing the entry of nationals of an enemy state or nationals of a hostile state is likely in many cases to harm legitimate and important interests of the citizens of the state that imposes the prohibition — whether we are speaking of the desire to create a bond of marriage and whether we are talking of other personal and economic relationships. This violation is likely to be more serious when it specifically affects certain groups of citizens. In most cases, the hostile state is not merely a national state, but it is often a neighbouring state. For this reason it is not at all uncommon that when a conflict is being waged between the two states. there are in the territory of one or both of them a population of citizens that has an ethno-cultural connection with the other state… In this situation, preventing the entry of nationals of the hostile state naturally injures the members of that group more than other groups. But this fact does not disqualify the prohibition against the entry of enemy nationals — a prohibition whose purpose is to protect the security of all the citizens of the state, whatever their origin — and it cannot be considered to be improper discrimination against the members of that group on account of their origin; this is a necessary and unavoidable consequence of a dispute between two national states and the principle of self-defence’ (ibid., at pp. 325-326).

5.    Notwithstanding the law’s violation of the right of the Israeli spouse to family life in Israel with the spouse who is a resident of the territories, I do not think that this violation is unconstitutional. This is because the law satisfies the conditions of the limitations clause in the Basic Law. In the disagreement that has arisen in this context between the justices of the panel concerning proportionality (in the narrow sense), which concerns the question of whether the contribution of the law in promoting the security purpose underlying it is commensurate with the injury arising from it to the Israeli spouses who wish to establish a family life with their spouses who are residents of the territories, my opinion is like that of Vice-President Emeritus Cheshin.

6.    This position derives from the bloody conflict that has been taking place for several years between Israel and the Palestinian Authority, and the professional assessment of the security forces, against this background, that the permanent entry of residents of the territories into Israel and their free movement inside Israel that is facilitated by the receipt of Israeli documentation may endanger the safety and security of the citizens and residents of the state to a greater degree. This assessment is based, inter alia, on the nature of the conflict that is characterized by the deep involvement of the civilian Palestinian population, the fact that residents of the territories who received a status in Israel are an important component in the terror infrastructure and in the planning and perpetration of attacks, and the fact that these residents have become ‘a preferred population of terror organizations for the perpetration of hostile activity in general, and inside the State of Israel in particular’ (explanatory notes to the draft Citizenship and Entry into Israel Law (Temporary Provision) (Amendment), 5765-2005). This court also held in the past that the terror organizations ‘are supported by part of the civilian population, and by their families and relatives’ (Ajuri v. IDF Commander in West Bank [1], at p. 358 {87}). This assessment is supported by the existence of the de facto involvement of Palestinians that were residents of the territories who received a status in Israel as a result of the family reunification process, and abused this status in order to perpetrate or aid in the perpetration of terror attacks in which dozens of Israelis were killed. This involvement does not necessarily represent the entire risk to public security involved in giving a permanent status in Israel to residents of the territories. As can be seen from the explanatory notes to the draft law, the weight of this involvement may increase in the future as the building of the separation fence progresses. The professional position of the security establishment also holds that a specific check of the risk is not sufficiently effective at this time, and in the circumstances of the case, there exists no alternative that can be considered an effective measure for eliminating the aforesaid danger. These assessments of the security establishment were not disproved by the petitioners, and in accordance with the rules that we have adopted they should be given great weight (see Beit Sourik Village Council v. Government of Israel [2], at pp. 844-845 {301-303}; HCJ 258/79 Amira v. Minister of Defence [171], at pp. 92-93). Moreover, these assessments have been adopted by the legislature.

In this context, great weight should also be attributed to the ‘international norm according to which no state is accustomed to allow into its territory persons who have connections with the side fighting against it in a time of an armed conflict,’ a norm that applies also to immigration for the purposes of marriage (Rubinstein and Orgad, supra, at pp. 316 and 320).

At the same time, we should take into account the fact that we are speaking of a temporary law (Gaza Coast Local Council v. Knesset [6], at p. 553), and the qualifications that were recently added to the law, which have reduced the injury and allowed a status to be given in Israel to population groups who present a smaller security risk.

 In view of all the considerations above, and in view of the degree of caution and self-restraint that the court should adopt when it considers the voidance of primary legislation (see Menahem v. Minister of Transport [11], at p. 263), I am of the opinion that the law satisfies the proportionality test provided in the limitations clause of the Basic Law (with its three subtests), and there are no grounds for declaring it void.

7.    Therefore I agree with the conclusion of the Vice-President Emeritus, Justice M. Cheshin, that the petitions should be denied. I also join in my colleague’s recommendation that the state should consider including in the law an exception that allows, in special humanitarian cases and in the absence of any suspicion of a security risk, giving a status in Israel.

 

 

Justice E. Rivlin

My colleague, President A. Barak, wishes to conclude his opinion with a determination that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the Citizenship and Entry into Israel Law) is void. There is no need today for this declaration.

‘This law’ — as the Citizenship and Entry into Israel Law states — ‘shall remain valid until the second of Nissan 5766 (31 March 2006)’ (with a fixed extension because of the elections that took place). This sunset provision in the law provides that it will be void when it expires. We have no further need to make an order to this effect. And if I do not end my opinion here, it is for the following two reasons: first, I assume that those who agree with the position of my colleague the president are of the opinion that if we do not do so now, we shall need to consider the constitutionality of the law if and when it is extended. Second, and no less important, I cannot avoid addressing the fundamental positions expressed by my colleague President A. Barak on the one hand, and my colleague Vice-President M. Cheshin on the other. This is because the approach adopted by each of them is different — each in different senses — from my approach.

As I shall clarify below, the first question, the automatic expiry of the law, is not unrelated to the other, the fundamental question of the constitutionality of the law. A consideration of one also has implications for the other.

2.    My colleagues, who saw a need to resort to constitutional judicial scrutiny, were of the opinion, I assume, that ‘what has been is what will be’ (Ecclesiastes 1, 9). There is no assurance of this. Admittedly the law was extended in the past by the Knesset for limited periods, but from time to time important changes were made to it. Moreover the Knesset that enacted the Citizenship and Entry into Israel Law and extended its validity has been dissolved, and a new and different Knesset has replaced it. The government that initiated the law no longer exists and a new government has been formed in its stead. The parties that made up the previous government have changed almost unrecognizably. For all these reasons, constitutional review of the law, in so far as it is prospective, necessarily addresses a law that has not been enacted, a law whose provisions can hardly be predicted today. ‘What has been’ is not (necessarily) ‘what will be’ — if there will be anything at all.

3.    The question of intervention here highlights the issue of judicial authority: judicial authority is limited to the questions in dispute. Indeed the court, when necessary, goes beyond its traditional and natural role of deciding a concrete dispute between litigants, and it is required to address ethical questions that underlie the substantive rule of law and whose implications extend beyond the specific case of those litigants. It is the duty of the court to protect the basic rights of the individual and of the whole public against a violation thereof by the executive and legislative branches. Moreover, constitutional judicial review is an essential tool for ensuring the protection of the substantive rule of law. Democracy is not merely the rule of law in its formal sense. Democracy is also substance. Its values, including dignity, liberty and the other human rights are its soul.

 But even when the judge is required to depart from the nucleus of his authority and to make a contribution to the substantive rule of law, he does not remove his judge’s gown. This gown is not the garb of power. It brings with it an advantage and limitations. Its advantage is that it isolates its wearer from foreign influences and it maintains his independence. But the gown also has a price. Its limitations are limitations that its wearer takes upon himself voluntarily, for his power lies in these too. The judge limits himself with rules. In his decisions he only addresses what the parties brought before him. He restricts himself to concrete questions of real substance on which a decision is essential. He does not give advisory opinions (see Rescue Army v. Municipal Court of Los Angeles [210]) nor does he decide questions that have not yet arisen or questions that are no longer relevant.

The court is required to adhere to these rules especially when it is empowered with the most drastic measure that it possesses, which is reserved for cases where it has no alternative — the measure of declaring a law passed by the legislature to be void. Indeed, in the United States the court has developed a series of rules that help it to refrain from considering constitutional questions that fall within its purview, when there is no need to do this. This was discussed by Justice Brandeis in Ashwander v. Tennessee Valley Authority [211]; see also United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 349-350; HCJ 5503/94 Segal v. Knesset Speaker [172], at pp. 548-550; HCJ 3267/97 Rubinstein v. Minister of Defence [173], at p. 524 {194-195}; Ganis v. Ministry of Building and Housing [104]). Only where it is strictly necessary to consider such questions — so the court thought there — should the judge consider them. In the words of President Barak, ‘it is our judicial approach not to decide a question of the validity of a statute unless it is essential for the purpose of deciding the case’ (Israel Investment Managers Association v. Minister of Finance [8]).

4.    The court in Canada, like other common law courts, has formulated rules of standing that must be satisfied prior to its intervention (Canadian Council of Churches v. Canada [217]). These rules are considered there not merely as the floodgates that prevent an inundation of litigation but also as a means of conserving judicial resources and as a framework for limiting judicial intervention. A traditional view of the status of the courts leads the courts in Canada to insist upon the procedural structure that allows only the consideration of concrete constitutional disputes. Notwithstanding, the court in Canada does allow, in certain circumstances, a departure from the rules of standing in cases where significant and critical questions arise (for a comprehensive survey of the rules of standing in Canadian law, see T.A. Cromwell, Locus Standi (Toronto, 1986)).

The rule that does not permit the consideration of ‘theoretical’ questions is also applied in the courts of Canada with exceptions similar to those formulated in the United States. The considerations that the court takes into account, when it decides whether to consider a ‘theoretical’ question, concern the procedural framework in which the proceeding is conducted, the nature of the relationship between the judiciary and the legislature and the question whether it will be possible to consider the question in the future when a concrete question arises (New Brunswick (Minister of Health and Community Services) v. G [218]). The exceptions to this principle are implied by the very logic of the rule. Thus, for example, the likelihood that the improper legislation will have a deleterious effect in the future on the petitioner, or others in the group that he represents, and that this recurrence will adopt a form that prevents judicial review in the future, may justify constitutional review (Note, ‘The Mootness Doctrine in the Supreme Court,’ 88 Harv. L. Rev. 373 (1974-5), at p. 378). A tangible example of this occurred in Roe v. Wade [212], where the court was required to consider the constitutionality of a statute that provided that performing an abortion constitutes a criminal offence. There the nature of the dispute required a decision despite the fact that it had become moot; the length of pregnancy is a factor that may naturally prevent any concrete and practical clarification of a question in dispute, so that there is no alternative to holding an ‘academic’ consideration of the matter after the event. The appeal in that case was originally filed in 1970 and it was only decided in 1973. This is an example of a recurring dispute that cannot be decided in real time.

5.    Some of these ‘filter’ rules have not been adopted in Israeli law; we have relaxed the rules of standing for a litigant in constitutional matters, and the question of ‘justiciability’ has been answered in Israel in our own way. Notwithstanding, we do not usually consider ‘theoretical’ questions that have become moot or that do not yet require a decision. We do not consider these questions before they become relevant or after they have ceased to be so. We consider them at their proper time. A change in circumstances that occurs after the filing of a petition to declare a law void may affect whether we decide to consider the petition. A significant change, and certainly the expiry of the law, after the petition is filed and before the judicial decision, may make the decision redundant.

The rule that the court will not consider a petition if the question it raises has become moot was discussed by President A. Barak in HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [174]:

‘The basic rule is that in general the court will not consider a petition, even if it was relevant, from the moment that it becomes theoretical (Tzemah v. Minister of Defence [9], at p. 250 {640}. This rule also applies to petitions that raise important and fundamental legal questions. When the late Mr Overkovitz died, this petition became moot. Admittedly we sometimes consider theoretical petitions despite the aforesaid rule. This will occur especially in a case where “from a practical viewpoint the court cannot make a decision… except when it is presented as a general question that is unrelated to a specific case” (ibid., at p. 250 {641}; see also HCJ 73/85 Kach Faction v. Knesset Speaker [175], at pp. 145-146). But the case before us is not of this kind.’

 The rule, and the exceptions thereto, were also discussed by Justice M. Naor with respect to an appeal concerning the interpretation of a law that became theoretical after the appeal was filed. This is what she said in CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [176]:

‘The rule is that the court does not consider matters that have become academic and theoretical. This is the rule in civil matters: CA 506/88 Shefer v. State of Israel [177]. This is also the rule in the High Court of Justice: Kach Faction v. Knesset Speaker [175]; Attorney-General v. National Labour Court [69].

Indeed, there is no rule that does not have an exception. The court may consider a matter that has become theoretical where the issue involved is likely to recur and its nature is such that it becomes theoretical before a judicial decision can be made with regard thereto (an issue that is “capable of repetition, yet evading review,” in the words of Justice McKenna in Southern Pac.Terminal Co. v. Interstate Commerce Commission [213], cited in Roe v. Wade [212] and Shefer v. State of Israel [177]).

A good example of the exception that the appellant mentions in his statement is Tzemah v. Minister of Defence [9], in which the question raised was whether a provision of the Military Jurisdiction Law, which states that a senior officer who is a military policeman may make an order to arrest a soldier for a period that does not exceed 96 hours, was contrary to the Basic Law: Human Dignity and Liberty. In this matter, which was of a recurring nature, it was impossible to make a fundamental decision before the matter became theoretical.’

See also Man, Nature and Law Israel Environmental Protection Society v. Minister of Interior (not yet reported) [178]; the remarks of Justice M. Naor in HCJ 7190/05 Lobel v. Government of Israel [179], with regard to denying a petition that could not be decided because of ‘the absence of a concrete, clear and complete set of facts, which is essential for making a principled judicial decision.’

6.    In our case, the petition concerns a temporary provision whose type and circumstances justify a finding that the petition is both too late and too early. A number of factors make this the case, and together they all lead to the conclusion that there is no reason to make a judicial declaration that the temporary provision is void: the new law has not yet been formulated, if indeed the incoming Knesset chooses to enact such a law, whereas the existing law is about to expire. In this sense, the dispute today is merely speculative and its consideration is ‘theoretical.’ A real dispute should exist at every stage of conducting the judicial review and not only when the petition is filed; the deliberation is fruitful when it takes place too early, before the dispute is not known, or where it has not crystallized. The approach that where there are no special circumstances to justify this, the legislature should not be called to account with regard to a law that is no longer valid, or a law that has not yet come into effect, is based on remedial considerations and the logic of exercising judicial discretion. Admittedly even a temporary provision may justify judicial review, where there are circumstances that justify intervention; but in our case no such circumstances exist (cf. Ressler v. Knesset [128]).

Even if the legislature once again extends the temporary provision for a limited period, we have no reason to assume that the new temporary provision will be identical to the one we are reviewing today. Experience shows that in the past the legislator made a significant change to the provisions of this law. The change was in the clear direction of reducing the restrictions applicable to foreigners who want to become residents of Israel, whether by way of reducing the categories of persons who are not entitled or by adding regulatory provisions that authorize the Minister of the Interior to allow the entry of foreigners who are in the original categories. As we have said, in addition to experience there is also the uncertainty of the future. In this uncertainty (which itself makes our judgment cross over into the territory of an advisory opinion) there is one important certainty: the legislator, whose actions we are trying to predict today, is different from the one whom we are seeking to address today. We are seeking to direct the weapon of judicial review at a concern that arises from past laws and whose nature we can only imagine.

My conclusion is therefore that there is no need to address the question of the constitutionality of the provisions of the law, which are changing and at this time are setting into the murky waters of the future. Indeed, in the circumstances of this case it would be wrong to do so.

The constitutional right

7.    My colleagues saw fit to act differently, and the disagreement between them focuses on the opinion of my colleague President A. Barak, on the one hand, and the opinion of my colleague Vice-President M. Cheshin, on the other. Notwithstanding the different premise, I see no way to exempt myself from addressing the disagreement between them. The opinion of my colleague the president sets out a well-ordered thesis on the subject of constitutional judicial scrutiny. His opinion describes the legal issues precisely and with great clarity, each in its proper place. The opinion of my colleague the vice-president addresses the sensitivities of Israeli society. In his open and fluent manner, he describes the difficulties of our times admirably. He says (in para. 6 of his opinion):

‘…While we write this judgment the citizens of Israel continue to live under the threat of the murderous terror that is directed against them. We already know that we are speaking of one of the most serious onslaughts that we have undergone. Tens of thousands of terror attacks originating in the territories have struck children, the elderly, women and men indiscriminately and mercilessly. The vast majority of these are innocent citizens who are engaged in their normal day-to-day activities… Daily life in the country has been disrupted. Many citizens have become fearful of everyday occurrences, such as travelling on buses, visiting shopping malls, eating out in restaurants’ (ibid.).

He describes the alarming manner in which the ‘Protocols of the Elders of Zion’ have made their way into the Hamas Charter. He speaks of the responsibility that rests with the state to protect the lives of its citizens. Against this background, he seeks to determine the boundaries of the constitutional right to raise a family. In times of war, he says, it is questionable whether the basic right to marriage and family life ‘implies, in itself, a duty imposed on the state to allow the entry into Israel of enemy nationals merely because they married persons who are residents or citizens of Israel. This is an enemy that is sponsoring a prolonged and murderous attack against the state and its residents’ (ibid., at para. 2). Reality, the place and the time also indicate to my colleague the vice-president the nature of the principle of equality: he writes that —

‘… here we will also find the answer to the claim of discrimination, since a distinction made by the law — a distinction that concerns the residents of the territories and not the citizens of the state — is a permitted distinction between the citizens of the state who married foreign citizens that are enemy nationals and citizens of the state who married foreign citizens that are not enemy nationals.’

8.    I too am of the opinion that the constitutional question should not be divorced from the reality that encompasses it. The question should not be posed with regard to a theoretical world on another planet. The constitutional question should be considered here and now, in a pain-stricken state that exists on a burning strip of land. The reality is an overall reality in which it is difficult to make theoretical distinctions, just as there is no basis for making a theoretical and artificial distinction between the interest of the Israeli spouse who wishes to marry and the interest of the foreigner whom he wishes to marry; we should not avert our eyes from seeing who the foreigner is, to which political entity he belongs, who are his elected leaders and what are the circumstances in which his case is being considered. This reality that my colleague the vice-president describes is the true picture. It has an effect on the legal outcome, but my approach with regard to the method of the legal scrutiny is different. I believe that this reality cannot change the definition and scope of the right. It should be taken into account when we consider, within the framework of the constitutional balance, the question of the constitutionality of the restrictions imposed on the basic rights. In this I agree with the position of President A. Barak. One should not extend the operation of the limitations clause by restricting the right itself. The right should be interpreted generously and liberally. Thus, for example, we held that the scope of the freedom of expression also includes obscene and slanderous expressions, so that all forms of expression prima facie enjoy constitutional protection:

‘In examining the right of freedom of expression the point of origin in our legal system is that every expression, whatever its content may be, is “covered” by the constitutional protection’ (per Justice D. Dorner, in HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting [180], at p. 81 {35}).

This is also true with regard to the right to family life. The right to realize family life is a basic right. Denying it violates human dignity. Denying it infringes the autonomy of the individual to marry whom he wants and to establish a family; it certainly infringes his liberty. This violation of liberty is no less serious than the violation of human dignity (on the restriction of the right to marry as a violation of liberty, see Justice Warren in the leading case of Loving v. Virginia [188]). It deals a mortal blow to a person’s fundamental ability to dictate his life story. Israeli law recognizes the right of the Israeli citizen to family life. The right to family life also means the right to family life together under one roof. The right to family life is not merely the right of the parents. It is also the right of the child born to those parents. The right to family life is therefore protected in the provisions of the Basic Law as a part of the basic right to liberty and as a part of the basic right to dignity.

The definition of the right to have a family life should not be restricted. Even if we cannot allow its full realization, because of permitted constraints, we should not restrict its recognition. My colleague the vice-president says that the restrictions imposed on the constitutional right here do not concern the ‘nucleus’ of the right and they are located on its periphery. He therefore seeks to define the right under dispute in a more focussed manner. My opinion is different. Even if we are speaking of a ‘peripheral’ aspect of the right, as he assumes, this cannot affect the definition of the right. The premise should be a generous definition. The restriction — which may take into account the location of the case in the periphery or the nucleus of the right — should be considered within the framework of implementing the limitations clause. The balance between rights of the individual and the public interest or between rights inter se should be made within the framework of the limitations cause.

9.    Derogating from the constitutional right to family life has ramifications, in the circumstances of the case and in an indirect manner, on a defined and distinct sector of the population, which is also a minority group. It therefore includes a violation of equality. The right to equality is a part of human dignity. The violation of equality is improper whether it is a collective violation, an individual violation, a violation that diminishes human dignity because of the degradation and humiliation of the injured person or a violation that detracts from the right of every person to enjoy, in an equitable manner, the advantages of persons living in that specific society. ‘This is a violation of the autonomy of the individual will — the freedom of choice and freedom of action of the human being as a free creature’ (President A. Barak, in Movement for Quality Government in Israel v. Knesset [51]). We should also not detract from the right to equality unless the conditions specified in the limitations clause are fulfilled. A democracy is committed to substantive equality between the citizens living in it. This was discussed by President A. Barak in Kadan v. Israel Land Administration [38], at p. 282:

‘The State of Israel is a Jewish state in which there are minorities, including the Arab minority. Each member of the minorities who lives in Israel enjoys absolute equality of rights. Admittedly, a special key to enter the house is given to members of the Jewish people (see the Law of Return) but once a person is inside the house as a lawful citizen, he enjoys equal rights like any of the other people in the house.’

We have held that discriminating against an Israeli Arab merely because he is an Arab violates equality. A discriminatory violation of social equality is a violation of equality. A direct or indirect violation of the right to education which involves manifest or latent discrimination against a certain sector of the population is a violation of the constitutional right to equality (see Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel [41]).

10. The Citizenship and Entry into Israel Law violates the possibility of realizing the constitutional right to family life and the constitutional right to equality. It reduces their scope. Albeit the law does not prevent the Israeli spouse from marrying the spouse from the territories, nor does it prevent the Israeli spouse from realizing his right to have a family life in the territories, or anywhere else outside Israel. But it derogates from the right of the Israeli spouse to realize the family unit in Israel in those cases where the foreign spouse is a resident of the territories and is included in those categories with regard to which the Minister of the Interior has been authorized to prevent their entry from the territories into Israel. The result of this is also a violation of equality, because most of the Israeli spouses who marry residents of the territories are Israeli Arabs. I tend towards the outlook of my colleague the president, that we are not speaking of a distinction which is, prima facie, a permitted distinction. At the same time, I am of the opinion that the law does not intend to discriminate against the Arab citizens of Israel because they are members of that sector of the population. De facto it applies also to Jewish spouses who marry residents of the territories (the number of which, however, is negligible). But this is not enough. The violation of equality is not examined solely in accordance with the purpose of the provision that is alleged to be discriminatory, but also in accordance with the unintended result that derives from it. Consequently, were the law to remain valid we would need to consider the question whether the violation of the constitutional rights in this case satisfies the requirements of the limitations clause.

11. In my opinion, we should also not restrict the defined scope of human rights in times of emergency. We should also not adopt different balancing tests. The Basic Laws do not recognize two sets of laws, one that applies in times of calm and another that applies in times of emergency. Israeli constitutional law has a uniform approach to human dignity and liberty whether in times of calm or in times of danger. We do not interpret the statement of Justice Holmes in Schenck v. United States [184] that ‘when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right’ (ibid. at p. 52) as a call to depart from the constitutional tests themselves in a time of emergency. This is the case with regard to the freedom of speech and it is also the case with regard to other basic rights. The tests according to which we examine the restrictions on human rights because of various constraints are uniform tests at all times. The test is identical. But it should be remembered that its implementation is affected by reality. This was discussed by my colleague the president in his opinion here:

‘War is like a barrel full of explosives next to a source of fire. In times of war the likelihood that damage will occur to the public interest increases and the strength of the harm to the public interest increases, and so the restriction of the right becomes possible within the framework of existing criteria’ (at para. 20).

I agree, therefore, with the approach of my colleague the president that there is only one track for examining the petitions before us. This track is the path of the basic laws — the rights specified in it and the balancing tests prescribed in it.

The conditions for limiting llso  not interpret  address todayo joined ount the constitutional right

12. There are four conditions stipulated in the limitations clause: the violation of the basic right must be in statute or by virtue of statute; the law must befit the values of the State of Israel; it must be intended for a proper purpose; and it must violate the constitutional right to an extent that is not excessive. The disagreement in this case does not revolve around the question whether the first and second conditions are satisfied. It concerns the question whether the third and fourth conditions are satisfied, i.e., whether the law is intended for a proper purpose and whether it does not violate the constitutional right to an extent that is not excessive. The third condition concerns the purpose and the fourth concerns the proper means of realizing it.

With regard to the third condition, namely the question whether the law is intended for a proper purpose, a difficulty may arise that is inherent in the actual definition of the purpose. The violation of the constitutional right within the framework of a law of the Knesset may be intended to protect another right, and it may be intended to achieve a particular public interest. ‘In principle, a purpose is a proper one if it serves an important social purpose that is sensitive to human rights. Therefore, legislation that is intended to protect human rights is certainly for a proper purpose. Also legislation that is intended to achieve general social purposes, such as a welfare policy or protecting a public interest, is for a proper purpose’ (per Vice-President Barak in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 459). The question whether the value competing with the violated right in this case — the value that constitutes the purpose of the law — is a right of the individual or a public interest is a complex question. We shall return to this below.

The purpose of the law in this case, as my colleague the president determines, is a security purpose. It aims to reduce, in so far as possible, the security risk presented by foreign spouses in Israel. What underlies the legislation is the security concern that Palestinian spouses, who have an Israel identity card by virtue of their marriage to Israeli spouses, may be involved in terror activity. The concern is one of an abuse of their status in Israel — a status that allows them free movement between the territories of the Palestinian Authority and Israel.

The law, so my colleague the president determines, is intended to provide security for Israel by means of a reduction, in so far as possible, of the security risk presented by Palestinian spouses who live together with their Israeli spouses. ‘It is intended to protect the lives of everyone present in Israel. It is intended to prevent attacks on human life. These are proper purposes’ (para. 82 of the president’s opinion).

The requirement of proportionality

13. The fourth condition listed in the limitations clause requires the violation of the constitutional right not to be excessive. It is not sufficient that the purpose is a proper one; it is necessary that the measures adopted to realize it will also be proper ones, i.e., proportionate ones. The phrase ‘to an extent that is not excessive’ has been interpreted in Israeli case law, following foreign case law, as referring to three subtests: the suitability test (the rational connection), the necessity test (the least harmful measure) and the test of proportionality in the narrow sense (the proportionate measure test). The first subtest requires the existence of a rational connection between the (proper) purpose and the measure chosen for realizing it. This is a test of common sense and life experience. Among the measures that satisfy the rational connection between the proper purpose and the measure, the measure that is least harmful should be chosen; this is the second subtest. The third subtest is the subtest of the total balance. It examines whether the correlation between the benefit arising from achieving the (proper) purpose and the damage caused (as a result of the violation of the constitutional right), achieves a proper balance between the needs of the public and the harm to the individual.

The third subtest of the requirement of proportionality therefore imposes on the court the task of making a balance, but this balance is not divorced from the test that the court makes within the framework of the first two subtests. Moreover, in many cases, when it has been proved that there is a rational connection between the purpose of the law and the means chosen by it (the first subtest) and when the court has been persuaded that the purpose of the law cannot be achieved, as it is, by adopting less harmful measures (the second subtest) the path to the conclusion that the proper overall balance (the third subtest) is also fulfilled is a short one. This natural path has led several persons to the conclusion that the third subtest is in fact a redundant stage in the constitutional scrutiny, and indeed the positive determination of the first two subtests has led frequently to a quick decision on the question of the third subtest (see, for example, R. v. Keegstra [219]; McKinney v. University of Guelph [220]).

Personally, I do not agree with the approach that the implementation of the third subtest is redundant. It seems to me that one should not reach a sweeping conclusion that when the first two subtests are satisfied, the question whether the condition of proportionality is satisfied will be answered in the affirmative. Admittedly the third subtest should not be divorced from the other two, and the answer given to each one of them inherently has an effect on the others. But one should not belittle the importance of the last subtest, just as there is no basis for exaggerating the importance of each of the subtests on its own. They should be applied while showing sensitivity to the circumstances of each case (see Libman v. Quebec (Attorney-General) [221]). We are not speaking merely of guidelines. The subtests as adopted outline the method of applying judicial scrutiny to the issue of the conditions of proportionality, and in certain senses also to the limits of the court’s power. They allow a uniform and logical examination of the question whether the condition is satisfied.

Therefore the court will refrain from applying the proportionality tests mechanically or literally, when it is considering declaring a law void. This was well expressed by the Supreme Court of Canada when it held that:

‘The impairment must be “minimal,” that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement’ (see RJR–MacDonald Inc. v. Canada (Attorney-General) [1995] 3 S.C.R 199, at p. 342, and also Libman v. Quebec (Attorney-General) [221]).

The tests of proportionality combine to examine the correlation between the expected violation of the protected right, namely the strength of the violation and the likelihood of its occurrence, and the expected benefit inherent in the proper purpose of the law.

14. I agree with my colleague’s determination that with regard to the conditions of proportionality the first two subtests are satisfied. First, this is because there is a rational connection between the purpose of the law and the measures chosen by it. ‘The prohibition against the entry of the foreign spouses into Israel,’ so the president says (in para. 84 of his opinion), ‘eliminates the risk that they present. Someone who is not in Israel cannot bring a terrorist into Israel to carry out his “designs”.’ Even the fact that it was possible to realize the purpose of the law by means of additional measures that were not adopted does not necessarily indicate that the measure chosen is not rational.

With regard to the second subtest, my colleague the president says that a simple overall comparison between the harm caused by the ‘blanket prohibition’ against foreign spouses entering Israel, and the possibility of making an individual check with regard to the security risk presented by each of the spouses who wish to enter Israel will indeed show, necessarily, that the individual check is less harmful. But this is not the relevant comparison. ‘The question,’ the president clarifies, ‘is whether it is possible to achieve the purpose of the law by use of a less harmful measure’ (para. 88 of his opinion). This approach has also been adopted, for example, by the Supreme Court of Canada, which proposed that the harm does not need to be the least harmful possible, but the least harmful in view of the legislative purpose and other interests (see Edwards Books and Art Ltd. v. R. [223]). For the second subtest to be satisfied, it is sufficient for the state to clarify why an alternative measure would not be as effective as the measure in dispute in furthering the legislative purpose. In this respect, my colleague the president rightly says that the individual check does not realize the purpose of the law to the same degree as the blanket prohibition. ‘… in view of the central value of human life that the law wishes to protect, it is clear that the blanket prohibition will always be more effective — from the viewpoint of achieving the goal of reducing the security risk as much as possible — than the individual check’ (para. 89 of his opinion). His conclusion is therefore that, in the circumstances of the case before us, the individual check does not realize the legislative purpose to the same extent as the blanket prohibition, and that there is therefore no obligation, within the framework of the least harmful measure, to stop at this level, and the Israeli legislature was entitled to choose the probation that it chose.

What remains undecided, therefore, within the procedural framework chosen by my colleagues, is the question concerning the third subtest of the conditions of proportionality, the question of proportionality ‘in the narrow sense,’ namely, whether the benefit arising from achieving the proper purpose of the law is proportionate to the damage caused by it. My colleague President A. Barak is of the opinion that the additional security that the ‘blanket prohibition’ provides is disproportionate to the additional harm caused to family life and equality. ‘Admittedly,’ the president says, ‘the blanket prohibition does provide additional security; but it is achieved at too great a price. Admittedly, the chance of increasing security by means of a blanket prohibition is not “slight and theoretical.” Notwithstanding, in comparison to the severe violation of human dignity, it is disproportionate’ (para. 92 of his opinion). I do not agree with this conclusion.

Between an interest and a right

15. The balancing test between the adopted measure and the purpose underlying the law is derived from the question of the definition of the value competing with the violated right: a private right or a public interest. Even prior to the Basic Law, case law created a distinction between a vertical balancing test (between a right and a public interest) and a horizontal balancing test (between rights of equal weight). But this distinction is sometimes problematic. The problem arises from the artificiality that is often inherent in defining the public interest as distinct from the right of the individual. It should always be remembered that the public, which has the interest, is composed of individuals. And when the public interest is divided up into its individual constituents, it reveals an accumulation of rights of the individual. Thus, for example, when we are speaking of public security, which is called a public interest, we are speaking of none other than the right of each member of the public to life and safety. This classification has great significance, since the balancing test depends upon it (and see in this respect also the various positions concerning the classification of rights and conflicting values in HCJ 6126/94 Szenes v. Broadcasting Authority [181] — a public interest or a personal right — and the various balancing tests adopted there accordingly). With regard to the purpose in the law, we are not required in this case to make that distinction, since we have before us a proper purpose, whether the competing value is classified as a general interest of public security or whether it is classified as a personal right to life, and no one disputes this. But this classification may have, in this case, a significance with regard to the balance underlying the requirement of proportionality.

16. In the case before us, the president seeks to describe the protected value as a public interest — public security; my colleague the vice-president sees before him the right to life, which, in itself, is a protected basic right within the framework of the Basic Law: Human Dignity and Liberty. This difference has great importance, as we have said, with regard to choosing the appropriate balancing test, a horizontal balance or a vertical balance. Indeed, the value of public security usually takes on a vague shape, and the tendency is to regard it as an interest of a non-specific public. Frequently the nature of the expected harm to public security is also intangible. The human right to life, however, is a concrete and tangible right. It is almost the ultimate right, the right of specific people — human beings, each of whom is a world in himself — to life. It seeks to protect specific people. As stated above, the distinction between the two — between the interest and the right — is sometimes difficult, and the case before us proves this. Prima facie we have here a value that is an interest, a public interest. But in this case the public image becomes clear and the danger is focused. We do not see before us an intangible public but the plaintive faces of persons who are likely to be harmed in the next act of terror. We see the horrors of the attack in our mind’s eye. This is not the intangible fear for public safety that we have known in previous cases (see, for example, HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [182]; Universal City Studios Inc. v. Film and Play Review Board [105]; HCJ 2481/93 Dayan v. Wilk [183]. Public security is speaking here of the actual right to life, and it is this that the law seeks to protect. The attack that the law seeks to prevent is directed at specific people, individuals, Moslems, Jews, Christians and Buddhists, who live among us. Each and every one of these persons has the right to life. They are not standing before us today in person, since no one knows what the future holds in store for him. But their right is before us. The dividing line between the public interest and the right of the individual loses its strength in this case. With this distinction before us, let us turn to an examination of the overall balance, as the third subtest of the conditions of proportionality instructs us. It seems to me that there will then be no other conclusion possible than that the condition has been satisfied.

The overall balance

17. The side of the benefit in this balance was discussed in the opinion of my colleague the vice-president (at para. 109):

‘… an individual check of the persons included in those population groups who have a proven potential for endangering security and life may reduce the violation of the ability to have a family life in Israel, but it will not properly guarantee public security, and it will disproportionately violate the security of the individual and the public. It is not merely that there is an inherent difficulty in examining ab initio the positions and beliefs of the resident of the territories, to find out whether he supports our enemies or not; we also cannot ignore a real concern, which has been proved in the past, that the terror organizations will recruit the spouse who is a resident of the territories into its ranks only after he has been given a permit that allows him to enter Israel and to move freely in Israel. The investment of greater resources or more concentrated efforts will also not guarantee the security of Israeli residents, and the meaning of this is that cancelling the blanket prohibition in the law and replacing it with an arrangement of an individual check is likely to lead to quite a high probability of an increase in terror activities in Israel; to the killing and wounding of residents of the state; to a real and tangible weakening of the feeling of stability; and as a result of all of these to the undermining of democracy itself. In the task of balancing between a reduction of the killing, safeguarding life and guaranteeing the stability of the system of government, as compared with the damage caused to some of the citizens of Israel who wish to live with their foreign family members in Israel — and we should remember that the amendment to the law reduced the scope of the violation significantly — the benefit is, in my opinion, greater than the damage.’

This is the position with regard to the benefit. With regard to the damage, the legislator has done much to reduce it. First, the restriction imposed in the temporary measure does not apply to marriages with Palestinians who live in countries that have ceased to be enemy states, Egypt and Jordan. It applies to those people who live in the territories that are today under hostile rule. It may become unnecessary if times change. The violation of the right to have a family life, although difficult, is first and foremost limited in time. This is a temporary provision, and it will be examined, if it is re-enacted, each time anew, and in accordance with the circumstances that will prevail at that time. The reconsideration in itself reduces the fear of a continuing disproportionate harm. The temporary measure merely postpones the realization of the right. It does not cancel it. Even my colleague President A. Barak recognizes the possibility that it will be necessary to postpone the realization of the right, if there is a difficulty in carrying out the individual checks. He says:

‘… the security checks must be treated with great seriousness. Therefore if it is not possible to carry them out because of the security position in one part of the territories or another, the individual check will be deferred until the check becomes possible.’

Moreover, in the prevailing reality even my colleague the president recognizes the possibility of formulating presumptions of risk that naturally involve a generalization, including a presumption with regard to the age at which foreigners present a danger. ‘If it is necessary to allow the identification of the foreign spouses in Israel as persons who came from the territories,’ he says, ‘this should be allowed until they reach the age at which the danger presented by them is reduced’ (para. 94 of his opinion). This need also reflects the difficulty inherent in an individual check as a replacement for the measure adopted by the law. This need, to make the individual checks stringent, indicates the difficulty in achieving the purpose underlying the law by a different method. The difficulty is two-fold: the need to discover the character of persons who live outside the jurisdiction of the State of Israel and the need to predict the future with regard to the expected behaviour of foreigners who wish to enter the territory of the state even as we speak. Restricting the right of foreigners who are nationals of an enemy entity to live in Israel together with their spouses, during this war, is a consequence of the fear concerning the intentions of hostile parties to recruit them for terror activities, the fear that within this framework pressure will also be placed on persons who would personally prefer not to be involved in this, and past experience that shows that for the purpose of the struggle against the State of Israel use has been made of civilians.

Moreover, the legislature reduced the blanket prohibition prescribed in the original law. It applies the prohibition to population groups that present a relatively high risk, in accordance with past experience and the professional assessment of the security authorities. It adds to this the possibility of giving permits to stay in Israel to additional groups and also giving a permit to stay in Israel for temporary purposes. The harm to the injured citizens has been reduced, thanks to these amendments, by approximately 30%, as can be seen from the explanatory notes to the draft law. Logic dictates that additional restrictions will be removed in the future so that the number of persons whose right is violated will decrease. In this regard, I add my voice to the remarks of my colleagues, that the law should also include a provision allowing the approval of an entry permit into Israel in specific cases where there are serious humanitarian reasons justifying this. This omission should be amended, if the legislature decides to enact a new provision that restricts the entry of foreigners into Israel in a similar manner. But such a law has not yet come into existence and the current law is already passing away. So here I return to the beginning: ‘this law’ — as the Citizenship and Entry into Israel Law states — ‘shall remain valid until the second of Nissan 5766 (31 March 2006).’ It is a temporary provision, and it is in its final moments. The harm of the provision is vague and this strengthens the conclusion that the overall balance is also unable to serve as a ground for intervention in the temporary provision.

Therefore I join with the position of my colleagues who wish to cancel the order nisi that was made and to deny the petitions.

 

 

Justice E.E. Levy

1.    In this matter, which I believe is one of the most sensitive and complex ever brought before this court, we are charged with the difficult task of finding the proper balancing point between basic rights of the first order and the security needs of the State of Israel. At this time in particular there is no need to expound on the weight of these security needs. As for me, I will not hide the fact that the decision was accompanied by grave doubts, and that I wavered to and fro between the conflicting outlooks of my colleagues President A. Barak and Vice-President Emeritus M. Cheshin. In the end, I came to the opinion that the point of balance lies in the determination that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, requires careful examination, and within this framework there is no alternative to making changes to it that will reduce the damage it causes. However, since the formulation of a proper draft law must be done intelligently and on the basis of complex teamwork, and since on the other hand there is a concern that there will be those who will seek to abuse the position in order to harm the security of the residents of the state, my position is that, until the work of legislation has been completed, because of the fear of a normative lacuna, the law and the arrangements that exist by virtue thereof should be left as they stand.

2.    For more than half a decade the citizens and residents of Israel have been subject to a barrage of terror that is unprecedented in its intensity and the price it has extracted in blood. It is one of the most difficult periods that have befallen the state since it was established. The attacks make it difficult for the residents of the state to conduct their lives calmly and with security. It is this right to life and security, which every citizen or resident of any state around the world seeks for himself, that terrorism, with a cruelty that knows no equal, seeks to deny the residents of the State of Israel. I think that there is no clearer illustration that this danger still lies in wait for us, with ever-increasing intensity, than the tendencies to extremism in some parts of the Moslem world that threaten to become greater and stronger, and especially the deliberate choice of Palestinian society to place the reins of government in the hands of the Hamas movement, one of the leaders of the murderous terror against Israel.

3.    It is not for nothing therefore that the serious events that we have witnessed since September 2000 have become a turning point. Just as their intensity was completely different from the patterns of terror known in previous decades, so too did it become clear that the measures and defences used to frustrate terror adopted until then were insufficient. A redeployment and the implementation of more drastic defensive measures, which hitherto there had been no need to adopt, became necessary. These include legal arrangements that were capable of providing a normative basis for the war against terror. Thus, inter alia, the right of Israel to protect itself by means of a separation fence was recognized in principle (Beit Sourik Village Council v. Government of Israel [2]); it has been held that the military commander in the territories may order the place of residence of a person to be assigned for reasons of the security of the territories (Ajuri v. IDF Commander in West Bank [1]); the ability to impose severe restrictions on detainees in times of war (Marab v. IDF Commander in Judaea and Samaria [3]); and so on.

At the same time it became clear that the arrangements, by virtue of which it was possible for residents of the territories to acquire a status in Israel, could no longer stand in view of the drastic change in circumstances. I am speaking of the concern that by allowing the process of ‘family reunifications’ in the format that preceded the government decision of May 2002, there was a security breach that might play into the hands of the terror organizations. These, of course, rest neither night nor day in their attempts to find weaknesses in the defences of the State of Israel. Regrettably, from time to time they even succeed in doing so, and the suicide attacks that have plagued us only recently are sufficient to remind those persons, who wish to make light of the efforts of the security forces to prevent them, of how terrible and murderous are the consequences of a security breach of this kind.

4.    My colleague Vice-President Cheshin is therefore right in explaining that especially at this time the weight of the public interest, which seeks to reduce the security danger and ensure protection for the lives and safety of the public, is very great. The Knesset and the government rightly sought, each with the means at its disposal, to realize this interest by means of an arrangement that would reduce the existing risk. And even if, as my colleague the president says, the existence of this risk does not reduce the weight of the basic rights of the individual, which are violated by the arrangements adopted, in my opinion the security risk is most certainly capable of influencing the scope of the protection given to these rights and the location of the balancing point between them and the competing values.

5.    With regard to the nature of the arrangement under discussion in this case, I think that no one questions that the Knesset has the power to make legislative arrangements with respect to the immigration of persons who are not Israeli residents into its territory. This power is one of the cornerstones of every state, and my colleagues the president and the vice-president both discussed this extensively in their opinions. By means of arrangements of this kind, the state expresses its sovereign power of determining who may enter it, and naturally this involves making decisions concerning the composition of the population, the burden that the state is prepared to take on itself in absorbing new residents, the degree of benefit that this provides to the existing residents, and so on. And if this is the case in times of peace, it is certainly the case in times of war.

6.    Indeed, the public interest has a central place in shaping legislation that regulates the issue of immigration. However, and this is the second principle on which my position is based, I believe that there is no subject that is regulated in legislation that is exempt from satisfying the normative balance test against competing rights and values. From the moment that these acquired constitutional status, the scrutiny is a constitutional scrutiny, and when the court is required to carry out this scrutiny, it can only avail itself for this purpose of the tools of constitutional scrutiny prescribed in the Basic Laws and developed in the case law of this court for almost a decade and a half. This is self-evident, since as long as the Knesset as the legislature wishes to determine arrangements in statute — as opposed to Basic Legislation — it is subject to those principles that it established for itself when it sat as a constitutive authority.

Thus, no matter how important they may be, the immigration laws are not immune to constitutional review. Therefore, and notwithstanding the natural and understandable concern that the public interest of protecting the security of the state and its residents may be harmed, we cannot regard the executive power to determine immigration arrangements as an absolute authority that cannot be challenged. Like any authority, the exercising of this one is also subject to the rules and principles of constitutional scrutiny, and the first stage of this addresses the question whether basic rights of the individual have been violated by it.

7.    Two constitutional rights of the Israeli spouse who wishes to be reunited here with his Palestinian spouse are violated by the legislative arrangement that is the subject of the petitions before us, and both of them are derived from the right to human dignity, which is enshrined in the Basic Law: Human Dignity and Liberty. One is the right of a person to family life, which incorporates two secondary rights, without which it would appear they are meaningless — the basic right of a person to marry whom he chooses, as he sees fit and in accordance with his outlook on life, and the right that he and the members of this family will be allowed to live together also from the viewpoint of the geographic location of the family unit, which they have chosen for themselves.

The second right that is clearly violated by the Citizenship and Entry into Israel Law (Temporary Provision) is the human right to equal treatment. Prima facie, the prohibition in the law does not distinguish between Arab residents of Israel and Jewish residents. But it is clear to everyone that from an ethnic and cultural point of view, it is only for the Arab citizens of Israel that Palestinian residents of the territories constitute a natural group for finding a partner for marriage. This is a relevant difference that makes the legislative arrangement, which ignores this, deficient. Notwithstanding, I will emphasize once again what we have emphasized time after time in the case law of this court, and that is that constitutional rights do not stand alone, and therefore they are not absolute. On the other pan of the scales there are public interests which, in our case, as I have already said, are unparalleled in their importance. In making the balance we use, as aforesaid, the tools of constitutional scrutiny that are familiar to us, namely the conditions of the ‘limitations clause’ in the Basic Law: Human Dignity and Liberty, and especially the question of the purpose of the harmful measures and the extent of the harm.

8.    With regard to the purpose, as aforesaid, in the arrangement that is contained in the Citizenship and Entry into Israel Law, the legislature sought to provide a solution to the security risk presented by the spouse who is a resident of the territories, who wishes to make Israel the centre of his life. Notwithstanding, the language of the law shows that its purpose was not intended to provide a solution to every security risk that may arise from the entry of Palestinians into the State of Israel. This can be seen from the concessions, which are specific in their nature, that allow Palestinian residents of the territories to stay in Israel if they are spouses who satisfy the age requirements (s. 3 of the law), minors who are in the custody of a parent (s. 3A), and persons who are permitted to receive medical treatment in Israel or to work here (s. 3B). I believe that the rationale that underlies these concessions — that it is possible to neutralize the security danger that may arise from the persons falling into the concession categories — should cast light also on the cases of the other persons wishing to enter Israel in order to be reunited with their spouses.

9.    We therefore find ourselves, and in this I am in agreement with the opinion of my colleague the president, in the last stage of the constitutional scrutiny, which is the stage of considering the question of proportionality. I agree with my colleague the president that in its present form the law is problematic, since I fear that it harms not only the spouses who wish to be married, but also the democratic character of the State of Israel and the delicate fabric of relations with a significant sector of the public that lives in it. Notwithstanding, I think that the centre of gravity lies particularly in the second test of proportionality, namely the existence of a less harmful measure that is still capable of fulfilling the purpose underlying the Citizenship and Entry into Israel Law, which is, as I have said, reducing the danger that the normative arrangement will be abused to harm the security of the state.

The premise for my position, which seeks to discover less harmful measures than the one adopted by the Citizenship and Entry into Israel Law, is based on the assumption that in the final analysis there will be no alternative to replacing the blanket prohibition in the law with an arrangement based on an individual check of the person wishing to be reunited with his spouse. Naturally this arrangement must adapt itself to the security reality to the extent that this may change, and at this time I am of the opinion that the state ought to adopt measures of the kind that I will list below or ones like it, all of which at the discretion of the legislature:

a.     At this time, in so far as concerns the residents of the Palestinian Authority, whose ‘hostility’ does not require proof, they shall be subject to a ‘presumption of dangerousness,’ which the person seeking to immigrate will be required to rebut. For this purpose, the respondents may make the consideration of the case of the Palestinian spouse conditional upon presenting various items of documentation, from which it will be possible to discover his family and social ties, and whether he presents a danger in the present or the future. It is clear to me that an examination of the dangerousness of the candidate is difficult even in times of calm, and even more so in times of a security deterioration, and therefore this check may take time, and sometimes it is possible that it will not be possible to complete it, such as when the security establishment does not receive cooperation from its counterparts in the Palestinian Authority, and there is a difficulty in obtaining the information.

b.     It is a common phenomenon that a Palestinian who wishes to be united with his Israeli spouse first moves his place of residence to Israel, and thereby he presents the authorities with a fait accompli. Moreover, since the examination of applications for family reunification continues for a long time, sometimes also as a result of omissions on the part of the applicants themselves, the spouses become settled, acquire property, enter the work force and their children become a part of the local education system. This, in my opinion, is a situation that is unacceptable, since it involves offences against the Entry into Israel Law, and it is a basic principle that a person who wishes to immigrate to a foreign country must, first and foremost, obey its laws.

This leads to my conclusion that a consideration of an application of a Palestinian who wishes to be united with his Israeli spouse should be subject to the condition that as long as no decision has been made, he undertakes not to enter Israel. Conversely, entering and/or staying in Israel unlawfully should constitute sufficient grounds for denying the application for reunification.

c.     I further think that it would be correct to require every Palestinian who wishes to be united with his spouse in Israel to declare his loyalty to the State of Israel and its laws, and to give up his loyalty to any other state or entity.

As stated, these are merely examples of measures that could be adopted in order to ensure that the individual check does not become a source of security danger, and I am convinced that creative thinking by all the parties concerned may find additional measures that will achieve the same goal. However, to do all this requires time, and I am of the opinion that stipulating a framework according to which the respondents will be required to provide an improved arrangement within nine months is reasonable. Until such an arrangement is presented, because of the urgent security requirements, and the fear that a void may be created in the law, my opinion is that the current arrangement should be allowed to stand, in so far as the Knesset decides to extend its validity. It is also self-evident that the state should consider including transition provisions within the framework of the amended arrangement, in so far as these are relevant.

10. Before concluding my remarks, I would like to add that I can only express regret at the fact that the terror organizations, who do not stop at anything in order to achieve their purpose, do not even hesitate, as has been proved in the past, to abuse the genuine desire of Arabs on both sides of the border to be united in the covenant of marriage. It would appear that just as those persons do not recoil from spilling the blood of men, women and children whose only ‘sin’ is that they are Jewish (and we should remember that non-Jews have also been hurt), it is doubtful if they give any weight to the fact that by their actions they cause great damage also to the interests of members of their own people.

11. In conclusion, I propose to my colleagues that, subject to the aforesaid, we dismiss the petitions in so far as they concern making an absolute order at this time that declares the Citizenship and Entry into Israel Law to be void because it is unconstitutional. Notwithstanding, I should point out that if the respondents do not see fit to carry out what they have been asked to do, I doubt whether the law will continue to be capable of satisfying judicial scrutiny in the future.

 

 

Petition denied, by majority opinion (Vice-President Cheshin and Justices Rivlin, Levy, Grunis, Naor and Adiel), President Barak and Justices Beinisch, Procaccia, Joubran and Hayut dissenting.

16 Iyyar 5766.

14 May 2006.

 

HCJ 8414/05

 

 

Ahmed Issa Abdallah Yassin, Bil'in Village Council Chairman

 

v.

 

1.             The Government of Israel

2.             The Military Commander in the West Bank

3.             Green Park Inc.

4.             Green Mount Inc.

5.             The Land Redemption Planning and Development Fund

6.             Ein Ami Enterprise & Development Company Ltd.

7.             The Modi'in Illit Local Council

8.             Heftsiba Construction and Development Ltd.

 

 

The Supreme Court sitting as High Court of Justice

 

[February 18 2007]

 

Before President D. Beinisch, Vice President E. Rivlin & Justice A. Procaccia

 

Petition for an order nisi and an interlocutory injuction

 

For petitioner:                                      Michael Sfard

 

For respondents no. 1 & 2:                Avi Licht

 

For respondents no. 3, 4 & 6:           Renato Jarach, Shira Hay-Am

 

For respondent no. 5:                         Moshe Glick

 

For respondent no. 7:                         Gil'ad Rogel

 

For respondent no. 8:                         Yoram Bar Sela

 

 

JUDGMENT

 

 

President D. Beinisch:

 

                This petition is against Land Sequestration Order no. Tav/40/04 (Boundary Alteration), issued by the military commander for construction of the security fence on land of the Village of Bil'in, east of the settlement of Modi'in Illit in the Modi'in Bloc, in the Judea and Samaria area.

 

 

 

Background

 

1.             Modi'in Illit is an Israeli settlement in the area of Modi'in, lying east of the boundary of the Judea and Samaria area (hereinafter – "area"), north of road 443.  Living in it are approximately 32,000 residents, most of whom are ultra-orthodox.  Near Modi'in Illit are a number of Palestinian villages.  As part of the Israeli Government's program to erect a security fence between Israel and the area, the route of the fence was planned to pass through this area, at "stage C" of the erection of the fence.  The fence in this area separates the Modi'in bloc settlements (Mattityahu, Modi'in Illit and Hashmona'im) from the Palestinian villages of Bil'in, Saffa, Harbata, Dir Qaddis, Ni'lin and Al Midiya.  It is intended to protect the residents of Modi'in Illit, and the residents of the Modi'in bloc and the city of Modi'in which are adjacent to it.  The petition before us opposes the section of the fence being built on land of the village of Bil'in, a Palestinian village east of Modi'in Illit in which approximately 1,700 residents live.  The route of the fence on the land of Bil'in is the continuation of the route passing through the land of Harbata, which is north of Bil'in.  The route continues south on land of the village of Saffa, until it reaches road 443.

 

2.             Three sequestration orders were issued in early 2004 for the purpose of the erection of the fence east of Modi'in Illit: Sequestration Order Tav/27/04 (of March 21 2004); Sequestration Order Tav/40/04 (of April 25 2004); and Sequestration Order Tav/44/04 (of April 25 2004).  In the framework of examining administrative appeals filed by Bil'in residents against the route, the parties held a number of joint meetings and surveys in the field.  On May 13 2004 the residents were informed of the rejection of their appeals.  As a result of the judgment in the Beit Sourik case (HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, 58(5) PD 807), the military commander reexamined the fence route, in the light of the standards determined in that judgment.  An amendment of the route was decided upon, by which the section of the fence passing through the Modi'im riverbed (west of Bil'in) would be moved west, so that the river crossing point would be 800 meters from the original crossing point.  The route amendment was presented to the residents in October 2004, and on November 24 2004 an amended order of sequestration was issued – Sequestration Order Tav/40/04 (Boundary Alteration) – which is the order attacked in this petition.

 

3.             The altered fence route that passes through land of the village of Bil'in is 1.7 km. long.  It takes up 260 dunams.  The route is as far as two kilometers from the outermost houses of Modi'in Illit.  It leaves about one half of the land of the village of Bil'in (according to the British Mandate parcellation of the village lands) on the "Israeli" side of the fence.  According to petitioner, the extent of Bil'in village lands which will remain in the "seamline" area between the fence and the boundary of the Judea and Samaria area is approximately 1,980 dunams, part privately owned by Bil'in residents and part village land cultivated by its residents.  According to the data presented by respondents no. 1 & 2 (hereinafter – "respondents"), the route leaves approximately 1,647 dunams of Bil'in village land on the "Israeli" side, according to the British Mandate parcellation of the village land (the total of Bil'in land according to that parcellation is approximately 4,085 dunams).  According to respondents, 678 dunams of the land to remain in the "seamline" area between the fence and the area boundary are privately owned by residents of the village, and the rest are within the boundaries of Israeli planning schemes.  Approximately 196 dunams of the land are cultivated.

 

4.             The route of the fence on Bil'in land makes an eastern flank around areas for which there are planning schemes for the expansion of Modi'in Illit; schemes which are at various stages of planning.  One of the schemes is planning scheme 210/4/2, for construction of a residential neighborhood called "Naot HaPisga" east of Modi'in Illit, north of the Dolev riverbed.  The great majority of the neighborhood is planned to be built on land of the village of Harbata.  The "Naot HaPisga" neighborhood is being built according to a valid planning scheme, and infrastructure work for erecting the neighborhood began in 2004.  2,750 apartment units are planned to be built in the "Naot HaPisga" neighborhood, in high rise buildings.  On the ground, to date, hundreds of apartment units have been built, and land development work has been carried out.

 

5.             There is a planning scheme for constructing an additional residential neighborhood by the name of "East Mattityahu" south of the "Naot HaPisga" neighborhood, on the southern bank of the Dolev riverbed.  The original plan for constructing the neighborhood was detailed planning scheme 210/8, which was approved and about which notice of coming into force was published in 1999.  According to scheme 210/8, 1,500 apartment units have been  planned in "East Mattityahu", on an area of 900 dunams which has been declared "state land".  The main, central part of scheme 210/8 lies in the municipal area of Modi'in Illit, although parts of it stray beyond that settlement's area of municipal jurisdiction.  De facto, until 2004, scheme 210/8 had not begun to be implemented. In the meantime, private developers of "East Mattityahu" and the Modi'in Illit Local Council began to advance an amended scheme for the construction of the neighborhood – scheme 210/8/1, which was supposed to make it possible to double the number of apartment units in the neighborhood to 3,000, by denser construction, while the area of the neighborhood would remain essentially similar to the area according to scheme 210/8.  In February 2004 the settlement subcommittee of the Supreme Planning Council of the Area of Judea and Samaria (hereinafter – "the settlement subcommittee") approved scheme 210/8/1 for deposit, and notice of deposit was published in August 2004.  However, during 2004, when scheme 210/8/1 was being considered by the planning authorities, contracting companies had already begun its implementation on the ground.  It turns out that the developers took the law into their own hands and began to build the neighborhood according to the future scheme 210/8/1 before it had come into force.  As a result, wide scale illegal building work was carried out in "East Mattityahu" starting in 2004.

 

6.             In September 2005, soon after the petition before us was submitted, scheme 210/8/1 was approved to come into force.  Note, in this context, that scheme 210/8/1 is divided into two parts: western phase A, and eastern phase B, including 1,082 apartment units.  In the phase A area building may begin after the approval of the scheme.  However, according to a decision of the Minister of Defense of August 2005, phase B cannot be developed and built in the first stage, and its marketing in the future will be conditional upon receiving additional approval from the Minister of Defense.  De facto, building took place in the western area of the "East Mattityahu" neighborhood, in which hundreds of apartment units were built in three zones: two zones of respondent no. 8 and a zone of respondents no. 3-5.  In one of respondent no. 8's zones, in which building had already begun in 2002, eight buildings have already begun to be inhabited, to various extents.  All of the buildings were constructed according to the planning in scheme 210/8/1 and not scheme 210/8, which was the scheme that was in effect at the time of their construction.

 

7.             Furthermore, as a result of the petition, the State Attorney's Office became aware of various faults in the proceedings to approve scheme 210/8/1, regarding, inter alia, the scheme's deviation from the area of Modi'in Illit's municipal jurisdiction.  In the framework of the preparation of the response to the petition, the State Attorney's Office instructed the respondents not to publish notice of scheme 210/8/1's coming into force, as it was of the opinion that planning proceedings should be commenced anew, from the stage of deposit.  Respondents also decided to reexamine claims of ownership of part of the land to which the scheme applies.  Against that background, an additional petition was submitted by petitioner and the "Peace Now" movement, focusing upon the planning aspect of the "East Mattityahu" neighborhood (HCJ 143/06 of January 4 2006).  In that petition, this Court was asked to annul the approval for coming into force which the settlement subcommittee had granted to planning scheme 210/8/1 in September 2005, and to order action necessary in order to enforce planning and construction law in "East Mattityahu".  As soon as the petition was submitted, an interim injunction was issued (on January 6 2006) ordering immediate halt of any building without a building permit taking place in the area of planning scheme 210/8 and the area of planning scheme 210/8/1.  The Court also ordered immediate cession of any activity to inhabit the buildings in the zone and prohibited transferring possession of additional apartment units in the zone.  Entry into and use of apartment units were also prohibited.  Later (on January 12 2006) an additional provision was added to the interim injunction, according to which all construction work taking place in the zone pursuant to building permits, whether pursuant to the original planning scheme (210/8) or the new planning scheme (210/8/1), was to be halted.  As a result of severe financial difficulty encountered by the Heftsiba company (respondent no. 13 in HCJ 143/06, and respondent no. 8 in the petition before us), a wave of squatting on the part of apartment purchasers occurred at the company's building sites, including the Heftsiba site in the "East Mattityahu" neighborhood.  As a result of that development, the Jerusalem District Court (Judge D. Cheshin) decided on August 6 2007 (in the framework of Bankruptcy Case 4202/07) that "at this point, purchasers are not to be evicted from apartments they entered". On that basis, the Supreme Court decided on August 27 2007, in its hearing of HCJ 143/06, that despite the existence of the interlocutory injunction, "at this point, and as long as all of the facts have not become clear regarding the Heftsiba company and the purchasers' chances of receiving the apartments they bought, or, alternatively, restitution of the consideration they paid for them, the status quo on the ground shall not be altered."  It was further determined that no action would be taken at this point to evacuate the apartment residents who began squatting in Heftsiba apartments from August 1 2007 until August 6 2007. 

 

8.             After the petition before us was submitted, the agencies of the State ordered the annulment of the planning proceedings of scheme 210/8/1 and ordered that they be started again from the very beginning.  Scheme 210/8/1 was redeposited.  That scheme included enclaves of private land belonging to Palestinians from the village of Bil'in.  The new scheme determined, regarding those enclaves, that they are not a part of the scheme, that any construction on or use made of the private enclaves shall cease, and that the status quo ante shall be reestablished by evacuating buildings, building material and any other refuse, and covering said area with garden soil.  In order to allow the initiators of the scheme to fulfill said precondition, work to reestablish the status quo ante in the private "enclaves" was excluded from the interim injunction.  The renewed planning scheme was approved for deposit on February 15 2006, notice of its deposit was published on March 3 2006 (in Hebrew and Arabic language newspapers), and objections to it were heard.  On July 3 2006 the settlement subcommittee made its decision regarding the objections.  Subject to a number of changes in the scheme, and fulfillment of additional conditions in the scheme's bylaws, the committee decided to recommend to the Supreme Planning Council that it carry the scheme into force.  On January 31 2007 the Supreme Planning Council made its decision to carry into force the new version of scheme 210/8/1.  After the decision to carry the scheme into force and after the changes required by the decision had been made in the scheme's provisions, notice of the scheme's coming into force was published in the Hebrew and Arabic press in February 2007.

 

9.             The route of the fence on Bil'in land has been discussed by this Court in a number of previous petitions.  After sequestration orders Tav/27/04 and Tav/40/04 were issued (and after their amendment in November 2004) the Bil'in and Saffa village council chairmen submitted a joint petition against the route of the fence (HCJ 11363/04).  In the framework of that petition an announcement stipulated by all the parties was submitted to the Court.  The stipulated announcement relates, inter alia, to two sections of the fence on Bil'in land: "section C" beginning at the boundary of the land of Bil'in and Saffa and continuing north until the Dolev riverbed, and "section D", from the Dolev riverbed until the boundary of the land of Bil'in and Harbata.  The announcement stated:

 

"C.           From the land of the villages of Saffa and Bil'in, to the path east of the single house [section C], the parties agree that work toward implementation of sequestration order Tav/40/04 shall be carried out.  The width of the area in which construction will carried out shall not, generally, exceed 50 meters.  In carrying out the work, an effort shall be made to minimize harm to agricultural crops, and to keep the route on the western part of the sequestration order zone.  The work shall begin only after the marking of the route on the ground, after respondents give petitioners' counsel the map of the planning scheme for the southeastern neighborhood of Modi'in Illit, and after receipt of final approval by petitioners' counsel.

 

D.            From the path east of the single house to the boundary of the lands of Bil'in and Harbata [Section D], petitioners shall notify respondents, by December 12 2004 and after respondents have given petitioners' counsel the map of the planning scheme for the southeastern neighborhood of Modi'in Illit, their reply to the proposal which respondents presented to petitioners' counsel regarding alteration of the route."

 

In accordance with the procedural agreement between the parties, a survey in the field with counsel of the petitioners in HCJ 11363/04 (Ms. Atiyah, adv.) and with representatives of the village of Bil'in was held on December 22 2004.  During the survey Ms. Atiyah was given the map of scheme 210/8.  It appears, from the State's response to that petition, that despite what had been stipulated, Ms. Atiyah did not appear at a meeting with respondents regarding sections C and D and did not relay any written response regarding those sections.  At the opening of the hearing of said petition, it was relayed on behalf of Ms. Atiyah that the petitioners are rescinding their petition, and the petition was abated (on February 16 2005).  The petition having been abated, respondents began implementation of sequestration order Tav/40/04 (Boundary Alteration) and the erection of the fence.

 

10.          After just a few days a number of residents of Bil'in, represented by Ms. Atiya, adv., submitted a new petition (on February 21 2005; HCJ 1778/05).  That petition was based on the argument that the fence construction work had begun without them having been given the right to a hearing and to appeal.  The new petition did not mention the previous petition, which had been abated at the petitioners' request.  At the end of the hearing of that petition, the Court ordered the abatement of the petition due to unclean hands (on March 3 2005).  The Court wrote in the judgment:

 

"The fact of the existence – and abatement – of the petition in HCJ 11363/04 is essential and relates directly to the issue at hand.  Petitioners, and at very least their counsel, are presumed to be aware of the existence of that petition and the proceedings which took place in its framework.  In such circumstances, that lack of mention in the petition before us constitutes truly unclean hands, justifying the abatement of the petition.

 

Furthermore, considering the proceedings which took place in HCJ 11363/04, it appears that on the merits as well this petition should not have been submitted.  Petitioners' arguments (via the chairmen of the village councils and their attorneys) regarding the appropriate route in their areas of residence were heard and discussed in a detailed fashion in the framework of respondents' position in HCJ 11363/04, and they were given serious answers which even led to the stipulation of various procedural arrangements.  It is against that background that petitioners chose to retreat from their previous petition and to request its abatement.  The petitioners before us have not presented any justification for renewing the hearing of what are the very same issues, in the framework of their present petitions."

 

Additional proceedings relating to the route of the fence in Bil'in were in HCJ 2874/04.  That petition was originally against the route of the fence on land of the Village of Harbata, north of Bil'in.  On April 26 2005 a motion to amend the petition was submitted, in which petitioners requested the enjoinder of residents of the Village of Bil'in and to direct the petition against the route of the fence on land of the Village of Bil'in as well.  The Court decided to abate the motion to amend the petition "due to laches, due to unclean hands, and due to the fact that Mr. Shabita cannot request amendment of a petition that was submitted by others" (decision of June 14 2005).

 

The Petition and its Hearing

 

11.          The petition before us was submitted on September 5 2005, on behalf of the chairman of the Bil'in Village Council.  Petitioners request the distancing of the fence from the houses of the village, and from the agricultural lands of its residents.  When the petition was submitted, it was decided that it would be scheduled for hearing after judgment in the Alfei Menashe case (HCJ 7957/04 Ma'arabe v. The Prime Minister of Israel (yet unpublished, September 15 2005)), due to the legal question common to the two petitions, dealing with the effect of the Advisory Opinion of the International Court of Justice at the Hague.  The judgment in the Alfei Menashe case having been handed down, the parties were asked to submit their updated positions in the petition.  Respondents no. 3-6, real estate companies dealing in development and construction of the "East Mattityahu" neighborhood (hereinafter – the real estate companies) requested their enjoinder as respondents in the petition.  Petitioner was of the opinion that the enjoinder should be made conditional upon proof by the real estate companies of their rights in the land with which the petition deals.  The petition was heard on February 1 2006, before a panel consisting of President A. Barak and Justices D. Beinisch and E. Rivlin.  Respondents' counsel argued that the petition should be rejected in limine.  He noted that in the previous petitions as well, the respondents had clarified that the route was planned to protect the new neighborhoods to be constructed in Modi'in Illit, and that is within the authority of the military commander.  At the end of the hearing, an order nisi as requested in the petition was issued.  It was further decided to enjoinder the real estate companies, the Modi'in Illit Local Council and the Heftsiba company, which had also built in the "East Mattityahu" neighborhood, as respondents to the petition.  The Court did not see fit to issue an interlocutory injunction.  Nonetheless, it recorded the State's declaration that a gate at the northern edge of "section C" would not be built, and that said area would remain open for free passage until decision of the petition on the merits.

 

12.          After the affidavits of response were submitted, the petition was heard (on May 14 2006) by President A. Barak and Justices E. Rivlin and A. Procaccia.  Colonel (res.) Dan Tirza, who served as the head of the "Color Spectrum" Agency (dealing with the planning of the obstacle route in the "seamline area"), appeared before the Court.  Colonel (res.) Tirza provided a survey of the fence route and the considerations taken into account by the route planners.  Respondents' counsel once again argued for rejection of the petition in limine.  She also emphasized that the original scheme for "East Mattityahu" (210/8) was the basis for the route.  Its boundaries are nearly exactly like those of the new scheme (210/8/1).  The counsel for the real estate companies and the Modi'in Illit council voiced similar positions.  Petitioner's counsel claimed, against those arguments, that the expansion of the "East Mattityahu" neighborhood, in which only 80 families presently live, should not be considered.  Moreover, part of the construction work on the neighborhood was carried out without a permit, and part according to illegal building permits.

 

13.          At the request of petitioner, we held an additional hearing after the retirement of President A. Barak.  In that hearing (on February 18 2007) the parties once more presented their arguments and complaints regarding the route of the fence.  Shortly before the hearing we were informed that the Supreme Planning Committee had decided to carry new scheme no. 210/8/1 into force, and that notice of said scheme's coming into force had been published in the press.  Petitioner's counsel stated before us that at this time, the construction, de facto, is in the western part of the "East Mattityahu" neighborhood.  The eastern part of the scheme, which is to be built at a distance as close as 80 meters from the fence, is at a preliminary stage, prior to tenders and prior to development.  According to the provisions of the scheme, the implementation of the eastern part of the scheme is conditional upon approval by the Minister of Defense.  Respondents' counsel reiterated that the route was planned on the basis of scheme 210/8, and emphasized that the consideration behind it is a security consideration of defense of future residents.  Colonel Ofer Hindi, who presently serves as the head of the "Color Spectrum" agency, also appeared before us at the hearing, stating that an agricultural gate had been built on site, which minimizes the harm to the Palestinian residents and allows them to enter the "seamline area" in order to cultivate their lands.  The construction companies added that now, after approval of the new scheme no. 201/8/1, implementation of the plan to construct "East Mattityahu" is not merely a theoretical issue; it will take place with great speed.

 

14.          On May 8 2007, respondents submitted a request to change the status quo, according to which, as per their commitment, a gate was not built at the northern edge of "section C", which would remain, with their consent, open for free passage until decision of the petition.  They argued that maintaining the open crossing there is not necessary to fulfill the needs of the local farmers, and it constitutes a security risk and requires deploying a relatively large number of soldiers on site.  They thus wished to open the gate three times a day for one half hour, while prohibiting the Palestinians from being in that area at night.  On June 12 2007 we decided that opening the fence every day for an hour and a half, as requested by respondents, would worsen the harm to the residents of Bil'in and significantly detract from their access to their agricultural land and their ability to cultivate it.  Nonetheless, we stated that we accept respondents' position that leaving the gate open during all hours of the day, and especially at night, is not necessary.  Under such circumstances, wishing to minimize the danger to the soldiers stationed at the gate during the night, we determined that the Bil'in gate would remain open for free passage by Bil'in residents from 06:00 until 20:00, until decision of the petition.

 

15.          Note, to complete the picture, that in the meantime petitioner submitted an additional petition, revolving around the status of the property rights in the land upon which "East Mattityahu" is planned (HCJ 3998/06, of May 14 2006).  That was a petition for restrospective annulment of declaration no. 10/91 of January 15 1991 and declaration no. 20/90 of November 25 1990, by the Government and Abandoned Property Commissioner in the Judea and Samaria Area, in which certain areas of the lands of the Village of Bil'in were declared as government land.  It was argued that the declarations should be annulled, due to the fact that they were based upon an act of fraud – a "secret circular deal" between respondents no. 1-2 and respondent no. 4.  That petition was rejected on November 9 2006.  The judgment, by Rivlin J. (Barak P. and Procaccia J. concurring), stated, inter alia:

 

"we have reached the conclusion that a sufficient basis has not been laid before us to prove that a 'circular deal' indeed took place as alleged.  In other words, it was not proven that the declarations attacked in the petition were issued in order to bypass the proceedings determined by law for instilling land rights of the type discussed."

 

The Petitioner's Arguments

 

16.          Petitioner's central claim is that the fence route is not legal, as it was chosen for not security reasons, rather for the benefit of Modi'in Illit, which wishes to expand toward the area east of it.  Including hundreds of dunams east of the built-up area of Modi'in Illit was intended to include territory for future expansion of the settlement, upon territory contiguous with Israel.  The fence does not serve a military need.  It was claimed in the petition that the route of the fence follows the line of planning scheme 210/8/1, part of which is outside of Modi'in Illit's area of municipal jurisdiction, and not the topographic line, or the line of the settlement's houses, or any other line which could be considered to be a security line.  A considerable part of the route passes through the bottom of a slope, which certainly cannot be considered a strategically controlling area.  Petitioner notes that the scheme for the Modi'in Illit bloc also includes the agricultural land in the Dolev riverbed (between the "Naot HaPisga" neighborhood and the "East Mattityahu" neighborhood), which is private land belonging to Palestinian residents.  The "East Mattityahu" neighborhood is part of that scheme.  Thus, the roads in scheme no. 210/8/1 were planned as a part of a system of roads determined by the bloc scheme.  The fence route in its entirety in fact follows the boundaries of the bloc scheme.  Petitioner's concern is that respondents' intention is to take these areas over as well, in order to expand Modi'in Illit.

 

17.          Petitioners further claim that the route of the fence separates the Village of Bil'in from more than one half of its remaining land.  Presently on this land are thousands of olive trees, almond trees and vines.  The land also serves as pastures for sheep herds owned by the residents of the villages.  It constitutes the main source of livelihood for approximately 200 families in Bil'in.  Without it, these families are doomed to lives of poverty.  They further argue that in order to reach their land, the Palestinian residents will have to receive an entry permit into the closed area and pass a gate in the fence.  In light of the intent to construct the "East Mattityahu" neighborhood, the construction of the fence will apparently put an end to the cultivation of the land.  The fence in fact constitutes part of the tactic of taking over the cultivated land of the Village of Bil'in.  The petition also contains arguments against the procedure of declaration of Bil'in land as "state land".  Petitioner argues that it turns out, in retrospect, that the declaration procedure was apparently carried out with the Civil Administration's knowledge that the land is not abandoned or ownerless, and that there is a claim of purchase on the part of Jews.  The procedure was not legal, as the land does not fulfill the conditions determined in the declaration law, and since the declaration was intended to conceal the real essence of the deal. 

 

18.          Regarding preliminary arguments, according to petitioner, Bil'in residents' former counsel (Ms. Atiyah, adv.) signed the stipulations without consulting the residents and without their knowledge, and faulty steps were taken by no fault of their own.  Only in May 2005 did petitioner and the residents of the village find out about the stipulations which their counsel had signed on their behalf, and about the way she conducted the petitions and the reasons they were rejected.  As a result of the sequence of events to date, despite the multiple proceedings, the Court has not adjudicated the substantive questions which arise from the determination of the fence route, and the residents have not had their day in court.  Furthermore, petitioner only recently found out the truth about the motivation behind the determination of the route.  During the period in which the previous proceedings were being conducted, petitioner and the residents of Bil'in had no information regarding the plan to expand Modi'in Illit and to fit it to the route of the fence planned in the area.  The residents of Bil'in were confronted, he claims, by the Civil Administration's determined refusal of the request to give them copies of the Modi'in Illit planning scheme.  Viewing of the scheme was allowed only a few weeks before the current petition was submitted, as a result of a petition pursuant to the Freedom of Information Law which was submitted to the Court of Administrative Affairs in Jerusalem.

 

19.          Petitioner's legal argument is that the construction of the fence on land in Judea and Samaria is unconstitutional, and constitutes a violation of public international law.  The petition relies, inter alia, upon the Advisory Opinion of the International Court of Justice at the Hague (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 IL M 1009 (2004)).  According to that argument, the route was not chosen for security reasons, rather for purely political reasons, and is intended to annex territory for future development of Modi'in Illit to the State of Israel.  Thus it is argued that the fence is being constructed sine vires, or ultra vires.  It is further argued in the petition that the route of the fence is not proportional, as it causes harm of tremendous dimensions to the village and to the fundamental rights of its residents, including property rights, freedom of movement and the freedom to make a living.  It is also claimed that the fence could have been built in a way that would not usurp the land of petitioner and the residents of his village, or violate their rights.

 

Respondents' Position

 

20.          Respondents argue for rejection of the petition in limine due to intense laches, severely unclean hands on the part of petitioner and due to the existence of a valid agreement between respondents and petitioner.  Rejection of the petition on the merits is also requested.  Regarding laches, it is argued that petitioner was aware of the agreements signed by the attorney who was his counsel at the time, at the very latest, after the filing of the State's response to the motion to amend the petition in HCJ 2847/04.  The petition was submitted four months after petitioner knew, by his own admission, the facts regarding the agreements, and almost three months after the decision to reject the motion in HCJ 2847/04.  During that time the building of the fence was taking place in front of the eyes of the residents.  The delay changed respondents' position for the worse.  During those months various work took place in order to construct the fence.  A great amount of money was invested in constructing the fence.  Altering the route now will cause a severe and unreasonable delay in completing the fence, and will require investment of great additional resources.  Regarding section C, respondents argue that estoppel prevents petitioner from raising any arguments whatsoever, in light of the agreement with his counsel on his behalf, according to which the sequestration order in that section can be implemented.  Respondents note that although the agreement was not formally made, the continuation of the proceedings – which focused upon section D – clearly indicates the existence of agreement regarding section C.  Rejection in limine is requested also on the grounds of severely unclean hands.  The argument is based on the claim that in his petition, petitioner did not mention scheme 210/8, which has been in effect since 1999, focusing rather on scheme 210/8/1 which, at the time the petition was submitted, had not been approved.

 

21.          On the merits, respondents argue that the fence route is legal, and is in line with the provisions of international law and the caselaw of this Court.  Under the current security circumstances in the area, there is a necessary security need for the construction of the fence according to the route which has been determined.  The fence is a security means of the highest order, intended to defend the citizens of the State living in the Modi'in bloc, and the security of the State and its inhabitants.  According to respondent's line of thinking, in the framework of the determination of the fence route the military commander is authorized to consider new planning schemes for expansion of Israeli settlements.  The military commander is authorized to take new neighborhoods into account in the process of construction.  He is also authorized to consider valid planning schemes that have real chances of being implemented within a reasonable period, as there is no logic in building the fence and leaving new neighborhoods beyond it.  The weight that can be given to the existence of a planning scheme is not constant.  It is a derivative of the progress in implementing the valid planning scheme.  It depends both upon internal data regarding the population which the neighborhood is intended to serve and external data regarding the extent of harm to the Palestinian residents.

 

22.          In this case, in determining the route of the fence, the military commander took into account the need to defend the neighborhood which has been approved for construction pursuant to scheme 210/8, which has high chances of being implemented and in whose area construction has even begun, albeit with grand violations of the provisions of the scheme.  The planning scheme for its construction has been in force since 1999, and its western part is already partially built and inhabited, albeit with illegal construction, as it does not comply with the provisions of the effective scheme for its construction.  Also taken into account was the need to defend the "Naot HaPisga" neighborhood, which is now in advanced stages of construction.  As the aforementioned "East Mattityahu" neighborhood is to be built within the municipal boundaries of Modi'in Illit, and as under the circumstances of time and place there is a most reasonable chance that the fence will remain standing for a considerable number of years after the construction of the new neighborhood, there was nothing preventing the consideration of the fact of the planned construction of the new neighborhood in the framework of determining the route of the fence.  The fact that the developers of the "East Mattityahu" neighborhood took the law into their own hands and chose to commence illegal construction in the area of the neighborhood should not prevent the assigning of appropriate weight, in determination of the route, to the fact that a new neighborhood will be built on site.

 

The Real Estate Companies' Position

 

23.          The real estate companies also voice a series of preliminary arguments regarding severe laches and unclean hands, and claim reliance upon the agreement of December 15 2004 between petitioner and respondents, according to which construction will continue in section C according to the existing route.  They further claim that the relief requested in the petition is indefinite and all-encompassing, and that petitioner has not proven ownership of the relevant land and has not indicated concrete harm to any of the residents of Bil'in.  On the merits, the real estate companies argue that there is no justification for the alteration of the route of the fence.  According to them, they are the owners of the land to which planning scheme 210/8 applies, after the land was purchased legally, at full price, from its Arab owners, many years ago.  However, due to the concern that disclosing the documents of sale in public proceedings would endanger the lives of the sellers of the plots, the real estate companies refrained from attaching the documents which testify to that.  For that reason, claim the real estate companies, the State declared the purchased plots – at their request – as government land, and defined them as "private property under government administration".  A large number of village residents submitted an appeal of that declaration, however, the appeals committee rejected most of the appeals, including that of petitioner, and approved the declaration of the plots as government property, subject to the decision to remove a number of plots from the area declared.  According to the argument of the real estate companies, a large residential neighborhood is being erected on that land – the land of planning scheme 210/8 – which is an inseparable part of Modi'in Illit, and respondents are obligated to protect its residents and include its territory within the fence.

 

24.          The real estate companies further claim that the current route provides a reasonable, if not optimal, solution to the fence's security objectives, and that any movement of the fence westward will frustrate the original objective of the fence and endanger the residents of Modi'in Illit.  They claim that moving the fence westward will violate their proven rights unnecessarily and disproportionately.  In this context, the real estate companies are of the opinion that the present route also takes the fabric of life of the residents of Bil'in into consideration, and emphasize that this route distances the fence from the residents' houses, despite the fact that said distancing involves a concession of necessary topographically controlling points.  According to their argument, most of the land west of the route is owned by Jews; in most of it residential neighborhoods are being erected; there is no essential sign of the fabric of life of the Arab population on the ground; and although trees are planted in the Dolev riverbed, it is evident that the area has been neglected for years, is not taken care of and is not cultivated.  According to their argument, in that state of affairs, the proper balance of interests requires the erection of the fence along its present route, which properly balances between security of the inhabitants of Israel, and specifically of Modi'in Ilit, and the rights and fabric of life of the (Arab and Israeli) residents of the area, including the property rights of the real estate companies.

               

25.          Regarding the faults discovered in scheme 210/8/1, the real estate companies clarify that they had no intention to build without a permit or to show disrespect for the law.  They argue that they had every reason to assume that by the time work reached the relevant stages, they would already have building permits which reflect the new planning.  The suspension of the coming into force of scheme 210/8/1 by the State Attorney's office is what made the construction, technically, "illegal".  If events had followed their intended and expected route, as the Supreme Planning Council has always acted, the real estate companies would today have building permits, and all would be carried out according to law.  The real estate companies further argue that the building violations, to the extent that they indeed exist in the area of scheme 210/8, have no relevance to the route of the fence in the Village of Bil'in.

 

26.          Attached to the response of the real estate companies was the expert opinion of Major General (res.) Dr. Yom Tov Samiya, supporting their claims.  Major General Samiya opined that from the security standpoint, the location of the fence route constitutes the outer edge of the military commander's ability to consider the rights of the local Arab population on the one hand, and to provide security (albeit not optimal) to the residents of Modi'in Illit on the other hand.  The route allows control of the topographically controlling areas necessary for defending Modi'in Illit.  On the other hand stands the most slight harm to the fabric of life of the Palestinians, who will need to pass through an agricultural crossing for three weeks of the year in order to care for the trees and harvest the olives.  The location of the route, at a reasonable distance from the houses of the Israeli settlement, is the preferable situation in terms of the security aspect, as opposed to locating the route on territory which is relatively topographically inferior to Modi'in Illit and Bil'in.  In planning the route (which was altered after the Beit Sourik case), a series of controlling hills were already conceded, leaving them east of the fence.   If the hills are used by the Palestinians as controlling territory, the casualties will be among the Israeli forces patrolling along the fence.  Moving the route west will leave the houses of the "East Mattityahu" neighborhood and the "Naot HaPisga" neighborhood within the effective range of weapons in the possession of terrorist organizations in the area.

 

Discussion

 

27.          Decision regarding the legality of the security fence being erected in the Judea and Samaria area is made on the basis of a two-stage examination.  In the first stage the authority of the military commander is examined, and in the second stage, his discretion in employing his authority is examined (HCJ 1890/03 Municipality of Bethlehem v. The State of Israel, the Ministry of Defense, 59(4) PD 736, 747 (2005)).  The military commander's powers stem from the rules of public international law regarding belligerent occupation, which are entrenched mainly in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations), the annex to Convention (IV) Respecting the Laws and Customs of War on Land. Those regulations reflect customary international law.  The military commander's authority is also entrenched in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).  In accordance with the laws of belligerent occupation, the military commander is authorized to order the erection of a security fence in the Judea and Samaria area on the basis of security-military considerations (Beit Sourik; Alfei Menashe; HCJ 5488/04 The a-Ram Local Council v. The Government of Israel (yet unpublished, December 13 2006) (hereinafter – a-Ram)).  He is authorized to take possession of land, including privately owned land, for that purpose.

 

28.          The military commander's authority arises only when the reason behind the decision to erect the fence is a security-military one.  "The military commander is not authorized to order the erection of the security fence if his reasons are political.  The security fence cannot be decided upon on in order to "annex" territory of the area to the State of Israel.  The objective of the separation fence cannot be the drawing of a political border" (Beit Sourik, at p. 828; see also Alfei Menashe, paragraph 15).  According to regulation 53 of the Hague Regulations, it is required that taking possession of property be for the needs of the army of occupation.  According to Article 52 of the Fourth Geneva Convention, it is required that taking possession of property be absolutely necessary by military operation.  The military commander's authority to erect a separation fence also entails authority to erect a fence for the protection of the lives and security of Israelis living in Israeli settlements in the Judea and Samaria area, even though the Israelis living in the area are not "protected persons" as that term is defined in Article 4 of the Fourth Geneva Convention (see Alfei Menashe, paragraphs 18-22; HCJ 3680/05 The Teneh Settlement Committee v. The Prime Minister of Israel (yet unpublished, February 1 2006) paragraphs 8-10, hereinafter – Teneh; HCJ 1998/06 The Beit Arieh Local Council v. The Minister of Defense (yet unpublished, May 21 2006), hereinafter – Beit Arieh; HCJ 1348/05 The Mayor of Salfit v. The State of Israel (yet unpublished, July 17 2006), paragraph 20, hereinafter – Salfit).  The question of the legality of the Israeli settlement in the area does not reflect upon the duty of the military commander to defend the lives and security of the Israeli settlers (Alfei Menashe, at paragraph 20). 

 

29.          The second stage in the examination of the legality of the fence is the examination of the military commander's discretion.  The military commander is not at liberty to make any decision whatsoever that fulfills legitimate security needs.  When determining the route of the fence, he must consider and balance a number of considerations.  The first consideration is the security-military consideration.  By force of that consideration, the military commander is permitted to take into account considerations regarding the defense of the security of the State and the security of the army.  These considerations are considerations of military and security expertise, regarding which the military commander is granted wide discretion.  It is he that is responsible for security.  He has the security expertise, knowledge and responsibility.  The Court grants great weight to his stance (see Beit Sourik, at paragraph 46; HCJ 258/79 Amira v. The Minister of Defense, 34(1) PD 90, 92 (1979); HCJ 390/79 Duikat v. The Government of Israel, 34(1) PD 25 (1979)).  Accordingly, it has been said in our caselaw that "… we do not turn ourselves into experts in security affairs. We do not substitute the security considerations of the military commander with our own security considerations.  We take no position regarding the way security affairs are run.  Our task is to guard the borders of, and to maintain the boundaries of, the military commander’s discretion" (Beit Sourik, at pp. 842-843).  The second consideration which the military commander must consider is the welfare of the local population who are "protected persons".  The military commander must protect the human rights accepted in international law as rights of the local population (see Alfei Menashe, at paragraph 24; Teneh, at paragraph 10; Beit Arieh, at paragraph 8).  The third consideration is the safeguarding of the human rights of the Israelis living in the area (see HCJ 1661/05 The Gaza Coast Regional Council v. The Prime Minister, 59(2) PD 481, 560 (2005), hereinafter – Gaza Coast Regional Council; Alfei Menashe, at paragraphs 18-22; Teneh, at paragraphs 8-10; Beit Arieh, at paragraph 8).  That duty draws from the rules of international law and the rules of Israeli law.  In determining the essence of the rights of Israelis living in the area, the character of the area under belligerent occupation and the forces of the military commander are to be considered.

 

30.          The human rights to which the "protected persons" and the Israelis in the area are entitled are not absolute.  As all human rights, they are relative.  They can be restricted.  Some of the restrictions stem from the need to consider the rights of others.  Some of the restrictions stem from the security interest.  The military commander must balance the various considerations, which at times clash with each other.  A central standard in this balancing is "proportionality", which is examined in a three part test.  The first test determines that a link of fit is needed between the objective and the means.  The second test determines that among the means employable in order to realize the objective, the means which causes the least harm should be employed.  The third test determines that the damage caused to the individual by the employed means should maintain a proper proportion to the benefit stemming for it.  Regarding the three components of the proportionality test, it has been noted that "not infrequently, there are a number of ways that the requirement of proportionality can be satisfied. In these situations a 'zone of proportionality' must be recognized (similar to a 'zone of reasonableness'). Any means chosen by the administrative body that is within the zone of proportionality is proportionate" (Beit Sourik, at p. 840; see also Alfei Menashe, at paragraph 30).

 

The Legality of the Fence on Bil'in Land – the Outline of the Discussion

 

31.          We shall commence our discussion of the legality of the fence on the land of Bil'in with the examination of respondents' preliminary arguments.  Then we shall proceed to examination of the question whether the fence on Bil'in land was erected within the military commander's authority.  That discussion will examine the reasons for the construction of the fence beside Modi'in Illit.  After the examination of authority, we shall progress to examination of the scope of the harm to the local residents, and examine whether that harm is proportional.  We shall conclude our discussion with an examination of the relief which is called for in light of the entire legal analysis.

 

The Preliminary Arguments

 

32.          In their responses, respondents and the real estate companies raise three preliminary arguments: laches, unclean hands and the existence of an agreement with petitioner regarding "section C" of the fence.  Petitioner's counsel notes, in response, that before the petition was submitted, petitioner and the residents of Bil'in had no information regarding the plans for expansion of Modi'in Illit or regarding their fit with the planned fence route in the area.  Only shortly before the petition was submitted did he become aware of scheme 210/8/1 and the illegal construction.  Nor did petitioner know at the time about the scheme for Modi'in Illit.  Thus, petitioner should not be considered to have delayed the filing of the petition, to have unclean hands, or to be silenced by estoppel due to the agreement with his counsel in the previous petitions.  Petitioner's current counsel further claimed in the hearing before us that since the petition was submitted, additional facts have been discovered, justifying, in and of themselves, the reopening of the discussion of the issue.

 

33.          In our opinion, the preliminary arguments cannot lead to the rejection of the petition.  We accept petitioner's argument that the previous contacts and acts regarding the fence at Bil'in took place with only partial information regarding the planning situation of the "East Mattityahu" neighborhood, about the construction work de facto and about the considerations behind the planning of the fence route.  As it appears from the material before us, petitioner's previous counsel had been presented with scheme 210/8 in the past, but not with scheme 210/8/1, according to which construction was actually being carried out.  Thus, great weight is not to be assigned to the procedural agreement regarding "section C" (adjacent to scheme 210/8/1), which did not even reach the status of a formally binding agreement.  Furthermore, in the State's response to HCJ 11363/04, the two new neighborhoods of Modi'in Illit were mentioned only generally, without note of planning scheme numbers. Nor was the name of the neighborhood of "East Mattityahu" mentioned in the response, rather only the names "Naot HaPisga" and "Or Sameach" (paragraph 26 of the State's response to HCJ 11363/04 of January 8 2005.  Moreover, the State's response contained no clue of scheme 210/8's deviation from Modi'in Illit's area of municipal jurisdiction or the construction taking place in the "enclave" of private Palestinian land.  In its response, the State even emphasized that "the land located within the boundaries of the planning scheme are, necessarily, State lands or lands purchased by Israelis" (paragraph 15 of the State's response to HCJ 11363/04 of January 9 2005).  Only as a result of the submitting of the current petitions did the severe faults in scheme 210/8/1 come to light, requiring wide scale amendments and new approval proceedings.  Imprecision was also found in additional information presented before the Court.  Thus, for example, the figure stated by respondents regarding the scope of the land owned privately by Palestinians remaining on the "Israeli" side of the fence rose by 500 dunams, to 678 dunams.  Under such circumstances, when petitioner confronted difficulties in clarifying the relevant basis for the petition; when the data presented before his counsel and before the Court did not reflect the full picture; due to the substantive faults that were discovered over time regarding construction without an approved planning scheme; and due to information regarding the detailed planning scheme which was not relayed – the preliminary arguments raised by respondents and the real estate companies are not to be accepted.  Even if there is fault in the fact that the petition before us does not mention planning scheme 210/8 (which is the formally valid one), and that the arguments revolved around scheme 210/8/1 (according to which the construction was carried out de facto), due to the intensity of the faults discovered in the conduct of respondents and the real estate companies, I am not of the opinion that such a fault can lead to the rejection of the petition in limine, without discussion of it on the merits.

 

The Authority of the Military Commander

 

34.          We shall thus turn to the first component of examination of the legality of the fence, which is the authority component.  The question is whether the reason behind the route of the fence on Bil'in land is a security-military reason, or a political reason as claimed in the petition.  Using the tools at our disposal, we examined the motivation behind the erection of the fence.  We cannot accept the argument that the objective of the fence is to annex territory of the Judea and Samaria area to the territory of Israel and to the settlement of Modi'in Illit.  According to the factual basis which has been laid before us, the motivation for constructing the security fence in the area relevant to the petition is a security one.  The principled decision to construct the fence did not arise as a political idea of annexing territory, rather stemmed from military-security needs, and as a necessary means for defending the State and protecting its citizens.  The decision to construct the fence north and east of the Modi'in bloc and the settlement of Modi'in Illit was made against the background of the reality of severe terrorism which has plagued Israel since September 2000 and created a necessary security need to employ means to protect the lives and wellbeing of the citizens of Israel.  In the framework of those means, the government decided upon the erection of the security fence, whose objective is to frustrate and prevent infiltration of terrorist activity from Judea and Samaria into Israel.  We have already ruled in our caselaw that at the foundation of the decision to construct the fence is a security need, and not a political motivation (Beit Sourik, at p. 830; see also Alfei Menashe, at paragraph 100).

 

35.          Nonetheless, in the case before us it is clearly apparent that the determination of the fence route was significantly affected by the plans to erect new neighborhoods east of Modi'in Illit.  To the extent that the planning schemes considered in determining the route were in advanced stages of implementation and inhabitation, their consideration does not present difficulty, for various reasons.  Thus it is regarding the "Naot HaPisga" neighborhood which is being built according to a valid planning scheme.  Hundreds of apartment units have already been built and have been partially inhabited in that neighborhood.  That neighborhood is part of Modi'in Illit and is in need of defense just like it.  Thus, the fact that one of the considerations in planning the route was the defense of the "Naot HaPisga" neighborhood does not derogate from the authority of the military commander.  However, it turns out that an additional dominant consideration in planning the route was the defense of the "East Mattityahu" neighborhood.  Due to the planning situation of the "East Mattityahu" neighborhood, and the decisive weight which the military commander granted the defense of this future neighborhood, difficulty arises regarding the legality of the route that takes that consideration into account.  As is known, the planning of the route for the security fence should not be based on the desire to include, on the "Israeli" side of the fence, territory intended for expansion of settlements, specifically when the planning schemes are not about to be implemented in the near future (see Alfei Menashe, at paragraph 113; Salfit, at paragraph 29; HCJ 2732/05 The Chairman of the Azoun City Council v. The Government of Israel (yet unpublished, June 15 2006)).  Regarding the "East Mattityahu" neighborhood, it turned out that scheme 210/8/1 replaced, de facto, scheme 210/8 which had been in effect since 1999 but had not been implemented.  The route of the fence thus took into account a planning scheme which had been abandoned, prior to the approval of the new planning scheme.  In that state of affairs, one could not continue to rely on the original planning scheme, which had been abandoned by the developers and the local government, in order to justify the fence route.  It should be emphasized that due to the temporary nature of the fence as a security measure (Alfei Menashe, at paragraph 100), the planning of the route cannot include considerations related to invalid planning schemes, or future schemes which neither have been realized nor are expected to be realized in the near future.  Today as well, despite the fact that scheme 210/8/1 has passed the new approval proceedings, due to the fact that implementation of phase B (the eastern part) is conditional upon approval of the Minister of Defense, there is great doubt whether the fence route can be based upon the desire to include the neighborhood, in its entirety, west of the fence.  The planning aspect of the "East Mattityahu" neighborhood is complex.  It has undergone upheavals since approval of scheme 210/8 and since the planning of the fence route.  The planning scheme's provisions are also complex.  Due to that complexity, and due to the conclusion we have reached on the question of proportionality, we refrain from deciding the question whether the fact that the "East Mattityahu" neighborhood was a decisive consideration in the planning of the route leads to the conclusion that a fault occured regarding the military commander's very authority to order the erection of the fence on Bil'in land, or whether it should be determined that it is a fault in discretion, as opposed to lack of authority.  We thus assume, for the sake of discussion, that the construction of the fence was within the authority granted to the military commander.  We shall progress, then, to the examination of the question whether the use of the authority granted to the military commander was proportionate.

 

The Proportionality of the Route

 

36.          The fence route harms the residents of Bil'in.  That harm is caused as a result of the sequestration of the land for the construction of the fence itself, uprooting of trees located along the route, and sealing off of cultivated agricultural land on the "Israeli" side of the fence.  The fence route takes up 260 dunams.  In addition, the route detaches the residents of Bil'in from hundreds of dunams of private land and cultivated agricultural land.  That land is planted with olive trees, grapevines and almonds, and is also used as grazing land for the sheep herds of the village residents.  For many of the residents of Bil'in it is the source of their livelihood.  Access to this land will be restricted to a crossing at an agricultural gate for permit holders, with all the difficulties that entails.  Respondents do not deny the harm to the residents of Bil'in.  However, their position is that the harm is proportional, due to the necessary security need which includes, in their opinion, protection of the residents who will live in the new neighborhoods east of Modi'in Illit, including the two phases of the "East Mattityahu" neighborhood, a need which can be fulfilled, according to their argument, only by erecting the fence along the route on which it has been constructed.  Respondents note in this context that they intend to lessen the harm to the residents of Bil'in, and that they are also willing to pay compensation and regular payments for use due to the seizing of the land for construction of the fence.

 

37.          Is the harm to the residents of Bil'in proportional?  It appears that the fence withstands the rational link test.  The fence realizes the security objective behind the decision to construct it, which is separation between the Israeli settlements and the Palestinian settlements in the Judea and Samaria area, and protection of Israelis from terrorist attacks.  Does the route of the fence withstand the second subtest – the least harmful means test?  It was claimed before us that the security objective can be attained by using an alternative route which would be closer to the houses of Modi'in Illit, on the basis of the existing fence of the settlement.  At the hearing before us, petitioner further claimed that even if the desire is to include the houses which have been built in the "East Mattityahu" neighborhood on the "Israeli" side of the fence, the fence can still be moved west and the harm to the residents of Bil'in can be reduced.  Respondents' stance is that there is no other reasonable means that can attain the necessary security objective for which the fence was built, while harming the residents of Bil'in to a lesser extent.  That position is based upon their approach, according to which the security objective is defending the residents who will live in the future in the "Naot HaPisga" and "East Mattityahu" neighborhoods.  That position can be accepted, to the extent that it relates to the neighborhood of "Naot HaPisga" which is in advanced stages of construction and inhabitation.  That is not the case regarding "East Mattityahu".  As it appears from our discussion, the route based upon the planning scheme for the construction of "East Mattityahu" raises substantial difficulties.  The point of departure at this time for examining the route of the fence must thus be, as aforementioned, scheme 210/8/1, both in terms of its planning status and provisions, and in terms of its realization de facto.  Planning scheme 210/8/1 is divided into two parts.  Phase A (the western phase) can be realized when the planning scheme comes into force.  Development and marketing of phase B (the eastern phase), however, is conditional upon approval of the Minister of Defense.  It is uncontroversial that more than forty buildings have been built in the "East Mattityahu" neighborhood, including hundreds of apartment units.  Tens of apartments have already been inhabited, but the construction is solely in the western part of the neighborhood.  In the eastern part no development or construction work has been carried out.  That part is yet far from implementation, both normatively and practically.  The future implementation of phase B is not certain whatsoever.  Under such circumstances, we cannot accept the argument that defending the eastern part of the "East Mattityahu" neighborhood is a necessary security objective.  Regarding the eastern part, it is but a future need.  Considering the lack of certainty regarding construction of phase B of the neighborhood, and considering the temporary nature of the fence, it is not at this time absolutely necessary by military operation.  Furthermore, as detailed below, it seems that due to the desire to ensure the future construction of the eastern neighborhood, the fence route was determined in a place which lacks security advantages.

 

38.          Thus, the question requiring decision is whether there is an alternate route that provides protection to the houses being built in the western part of "East Mattityahu" whose harm to the Palestinian residents is lesser.  Respondents did not explain why the security objective behind the decision to construct the fence cannot be attained via a route that would circumvent the western part of "East Mattityahu" but leave Palestinian land in the Dolev riverbed and additional land, as well as the "enclaves" in scheme 210/8/1, outside the fence.  Respondents did not relay data regarding the distance between the fence route and the houses which have already been built in the "East Mattityahu" neighborhood.  Nor was data relayed regarding the distance between the fence route and the boundary of phase A of "East Mattityahu" as it appears from the aforementioned.  Given the factual basis as it was presented to us, the current route of the fence also leads one to wonder about the security advantage it provides.  It is uncontroversial that the route passes mostly through territory which is topographically inferior both to Modi'in Illit and Bil'in.  It leaves a number of hills on the Palestinian side and two hills on the Israeli side.  It endangers the forces patrolling the route.  Against the background of the security outlook presented to us in many other cases, according to which it is important from a security standpoint to construct the fence on topographically controlling territory, the current route leads one to wonder.  In general, the military commander presents the possession of controlling hills as a significant security advantage in many cases regarding fence route planning, but in this case a route has been determined that is at least partially on territory which is inferior vis-à-vis the hills.  This route cannot be explained by anything save the desire to include the eastern part of "East Mattityahu" west of the fence, otherwise it is doubtful whether there is a security-military reason for determining the route of the fence where it is now.  Respondents do not even deny that, stating expressly in their arguments that the route was chosen according to the security objective, including protection of the new neighborhoods to be built in the future, and that the distances of the route from the Israeli settlements were measured in accordance with the lines of the future planning scheme, and not according to existing construction.  Rejection of "option A", which was intended to exclude the Dolev riverbed from the "seamline area" was reasoned by respondents by the argument that "'option A does not provide an appropriate security solution for the residents of the new neighborhoods and the residents of Modi'in Illit, due to its proximity to the housing in the new neighborhoods".  It is to be remembered, as aforementioned, that the intention to develop the eastern part of "East Mattityahu" in the future does not even constitute a consideration to be considered at this point.  Under such circumstances, we have not been persuaded that it is necessary, due to security-military reasons, to maintain the present route that passes through Bil'in land.  We have not been persuaded that without considering planning scheme 210/8 in its entirety, there is no appropriate security alternative for construction of the fence for protecting the residents of Modi'in Illit.  It appears to us that against the background of respondents' clinging to the original scheme 210/8, no detailed examination was made of an alternate route that can ensure the security of the residents in the western part of "East Mattityahu" with less harm to the residents of Bil'in.  All the alternatives considered by respondents were rejected for security reasons regarding the defense of the new neighborhoods, including the two phases of the "East Mattityahu" neighborhood, and in fact the military commander did not even examine any possibility which does not consider, for example, the future phase B of the "East Mattityahu" neighborhood.  It must be remembered that moving the route westward will apparently lead to the construction of the fence on the territory of planning scheme 210/8.  That territory is mostly "state land" and not privately owned Palestinian land, a fact that will also reduce the harm to the Palestinian residents.  Respondents must reconsider the current route, and examine the possibility of an alternate route that is not based upon defending phase B of "East Mattityahu".

 

39.          We have not overlooked the real estate companies' claims that moving the fence west will lead to a violation of their property rights and their economic expectations.  However, these arguments cannot derogate from the conclusion that the respondents must reexamine the route, for a number of reasons.  First, there is a gap between the respondents' stance, according to which the territory upon which the "East Mattityahu" neighborhood is planned to be erected is "state land", and the real estate companies' stance according to which it is private land purchased by them or for them.  In accordance with the ruling of this Court in HCJ 3998/06 Yassin v. The Military Commander in the West Bank (yet unpublished, November 9 2006), the land to which planning scheme 210/8 applies has been declared as government land on the basis of it being "state land" and not on the basis of a claim of ownership by private entities.  That declaration does not, in and of itself, determine or create rights of ownership in the land.  To date there has been no substantive law determination of property rights held by any of the real estate companies.  The discussion of the fence route itself is not the fitting procedural framework to clarify the rights of ownership.  Second, even if we assume for the sake of the discussion that the real estate companies are the owners of the plots of land to which planning scheme 210/8 applies, that cannot prevent moving the fence west.  As security needs are likely to require harming the land of the local residents and their use of it, so are they likely to also require harming land of Israelis and their ability to use it (see, e.g., HCJ 5495/06 Hevrat HaKeren L'Yad Midreshet Eretz Yisrael v. The Minister of Defense (yet unpublished, August 15 2006)).  The proportionality rules in planning the fence route are likely also to leave Israeli residents and Israeli assets on the "Palestinian" side of the fence (see, inter alia, Teneh, HCJ 399/06 Sussia – Agricultural Cooperative Society for Community Settlement Ltd. v. The Government of Israel (yet unpublished, July 6 2006); a-Ram; Bir Nabala; HCJ 1844/06 Rinawi v. The Prime Minister (yet unpublished, June 15 2006)).  The balancing between the various interests – security needs, the rights of the Palestinian residents, and the rights of the Israelis – must be performed by the military commander in the framework of the reexamination of the fence route.

 

40.          In summary, we have not been persuaded that the second subtest of proportionality has been fulfilled in the fence route through Bil'in land.  We have not been persuaded that it is absolutely necessary by military operation to preserve the existing route of the fence which passes through topographically inferior territory on Bil'in land and that there is no worthy security alternative for construction the fence in order to protect the residents of Modi'in Illit.  Respondents must reconsider the existing route and examine an alternative route that can ensure the security of the residents in the western part of "East Mattityahu" and whose harm to the residents of Bil'in will be lesser.  We are aware of the fact that such alteration cannot be made in a day, as it requires taking down the existing fence and building a new fence along certain parts of the route.  Due to the continuing harm to the residents of Bil'in, respondents must perform the reexamination within a reasonable period of time.

 

41.          Due to our determination regarding the second subtest, we could have left to future decision the question whether the fence route fulfills the third proportionality test – the test of proportionality stricto senso.  However, we see fit to state that due to the entirety of the data and the considerations we discussed above, the fence route does not withstand the third proportionality test either.  That test examines the question whether the fence route's harm to petitioners is of proper proportion to the benefit which the construction of the fence on the chosen route entails.  In this case, the chosen route causes severe harm to the residents of Bil'in.  The harm is caused by the seizure of land for constructing the fence, uprooting of trees located along the route, and trapping agricultural land on the "Israeli" side of the fence.  As aforementioned, the route of the fence separates the village of Bil'in from a large part of the land still belonging to the village.  The route of the fence itself takes up approximately 260 dunams; approximately 1,700 additional dunams of its land according to the British Mandate distribution of the land, more than 670 of which are privately owned by residents of Bil'in, remain on the western side of the fence.  On this land there are currently thousands of olive trees, almond trees and grapevines.  The land is also used as grazing land for the sheep herds owned by residents of the village.  They are the main source of income for approximately 200 families in Bil'in.  Respondents do not deny the harm to the residents of Bil'in, yet they are of the opinion that the harm is reasonable and proportional.  They argue that the harm to the residents of the Village of Bil'in is proportional to the necessary security need to defend the inhabitants of Israel in general and the residents of the Modi'in bloc specifically.  We cannot accept that stance.  The construction of the fence on part of the land of Bil'in, and restricting the access of the residents of Bil'in to substantial additional parts of their land, by erecting checkpoints and an agricultural fence for permit holders only, create significant difficulties for the residents of Bil'in, and substantially harm the fabric of their lives.  And on the other hand, the security benefit expected from the present route, which today defends the territory upon which construction has not been carried out, is not comparable to the harm to the "protected persons".  Thus, the chosen route deviates from the balance between security needs and the needs and welfare of the residents of Bil'in.  Although we accept respondents' argument that choosing the route adjacent to the houses of Modi'in Illit does not provide a fitting security solution, respondents' stance was formulated in accordance with the boundaries of the future planning scheme of the "East Mattityahu" neighborhood, and not according to the existing construction on the ground.  As we ruled above, the existence of an intention to develop the eastern part of "East Mattityahu" in the future does not constitute a consideration that can be taken into account at this point, and thus it appears that the harm to the local residents can be lessened by choosing an alternate route which will not take into account territory intended for the future construction of phase B of the "East Mattityahu" neighborhood.  

 

42.          As mentioned above, in the hearings before us, data regarding the proper alternate route to replace the fence route attacked in the petition was not presented to us, and in fact such a route was not even examined by respondents.  Thus, we have decided to make the order nisi an order absolute, as follows: Respondents no. 1 and 2 must, within a reasonable period of time, reconsider an alternative to the route of the separation fence on Bil'in land, which will harm the residents of Bil'in to a lesser extent, and leave the cultivated land on the east side of the fence to the extent possible; in this context, the alternative is to be examined such that the territory of phase A of "East Mattityahu" will remain on the west side of the security fence, whereas the agricultural land in the Dolev riverbed and the land planned for future construction of phase B of the "East Mattityahu" neighborhood will remain on the east side of the fence.  Until completion of the examination of the alternate route, the interlocutory injunction of June 12 2007 shall remain in effect, such that the Bil'in gate shall remain open to passage by Bil'in residents from 6am to 8pm. 

 

Vice President E. Rivlin:

 

I concur.

 

Justice A. Procaccia:

 

I concur.

 

Decided as per the judgment of President D. Beinisch.

 

Given today, 21 Elul 5767 (September 4 2007).

 

 

 

 

 

 

The Supreme Court Sitting as the High Court of Justice

 

 [February  29, 2004; March 11, 2004; March 17, 2004; March 31, 2004; April 16, 2004; April 21, 2004; May 2, 2004 ]

 

Before President A. Barak, Vice-President E. Mazza, and Justice M. Cheshin

 

Petition for an Order Nisi.

For petitioners—Mohammed Dahla

For respondents—Anar Helman, Yuval Roitman

 

JUDGMENT

President A. Barak

 

The Commander of the IDF Forces in Judea and Samaria issued orders to take possession of plots of land in the area of Judea and Samaria. The purpose of the seizure was to erect a separation fence on the land. The question before us is whether the orders and the fence are legal.

 

Background

 

1.     Since 1967, Israel has been holding the areas of Judea and Samaria [hereinafter – the area] in belligerent occupation. In 1993 Israel began a political process with the PLO, and signed a number of agreements transferring control over parts of the area to the Palestinian Authority. Israel and the PLO continued political negotiations in an attempt to solve the remaining problems. The negotiations, whose final stages took place at Camp David in Maryland, USA, failed in July 2000.

 

From respondents’ affidavit in answer to order nisi we learned that, a short time after the failure of the Camp David talks, the Israeli-Palestinian conflict reached new heights of violence. In September 2000, the Palestinian side began a campaign of terror against Israel and Israelis. Terror attacks take place both in the area and in Israel. They are directed against citizens and soldiers, men and women, elderly and infants, regular citizens and public figures. Terror attacks are carried out everywhere: in public transportation, in shopping centers and markets, in coffee houses and in restaurants. Terror organizations use gunfire attacks, suicide attacks, mortar fire, Katyusha rocket fire, and car bombs.  From September 2000 until the beginning of April 2004, more than 780 attacks were carried out within Israel. During the same period, more than 8200 attacks were carried out in the area.

 

The armed conflict claimed (as of April 2004) the lives of 900 Israeli citizens and residents. More than 6000 were injured, some with serious wounds that have left them severely handicapped. The armed conflict has left many dead and wounded on the Palestinian side as well. Bereavement and pain wash over us.

 

In HCJ 7015/02 Ajuri v. IDF Commander, at 358, I described the security situation:

 

Israel’s fight is complex. Together with other means, the Palestinians use guided human bombs. These suicide bombers reach every place that Israelis can be found (within the boundaries of the State of Israel and in the Jewish communities in Judea and Samaria and the Gaza Strip). They sew destruction and spill blood in the cities and towns. The forces fighting against Israel are terrorists: they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including inside holy sites; they are supported by part of the civilian population, and by their families and relatives.

 

2. These terror acts have caused Israel to take security precautions on several levels. The government, for example, decided to carry out various military operations, such as operation “Defensive Wall” (March 2002) and operation “Determined Path” (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent terror attacks. See HCJ 3239/02 Marab v. IDF Commander in the West Bank, at 355; HCJ 3278/02 Center for Defense of the Individual v. IDF Commander, at 389.  These combat operations – which are not regular police operations, but embody all the characteristics of armed conflict – did not provide a sufficient answer to the immediate need to stop the terror. The Ministers’ Committee on National Security considered a list of steps intended to prevent additional terror acts and to deter potential terrorists from participating in such acts. See Ajuri, at 359. Despite all these measures, the terror did not come to an end.  The attacks did not cease. Innocent people paid with both life and limb. This is the background behind the decision to construct the separation fence.

 

The Decision to Construct the Separation Fence

 

3.    The Ministers’ Committee for National Security reached a decision (on April 14, 2002) regarding deployment in the “Seamline Area” between Israel and the area. See HCJ 8532/02 Ibraheem v. Commander of the IDF Forces in the West Bank. The purpose behind the decision was “to improve and strengthen operational capability in the framework of fighting terror, and to prevent the penetration of terrorists from the area of Judea and Samaria into Israel.” The IDF and the police were given the task of preventing the passage of Palestinians into the State of Israel. As a temporary solution, it was decided to erect an obstacle in the three regions found to be most vulnerable to the passage of terrorists into the Israel: the Umm El-Fahm region and the villages divided between Israel and area (Baka and Barta’a); the Qalqilya-Tulkarm region; and the Greater Jerusalem region. It was further decided to create a team of Ministers, headed by the Prime Minister, which would examine long-term solutions to prevent the infiltration of Palestinians, including terrorists, into Israel.

 

4. The Government of Israel held deliberations on the “Seamline Area” program (June 23, 2002).  The armed services presented their proposal to erect an obstacle on the “Seamline.” The government approved stage 1 of the project, which provides a solution to the operational problem of terrorist infiltration into the north of the country, the center of the country and the Jerusalem area. The obstacle that was approved begins in the area of the Salam village, adjacent to the Meggido junction, and continues until the trans-Samaria road. An additional obstacle in the Jerusalem area was also approved.  The entire obstacle, as approved, is 116 km long.  The government decision provided:

 

(3) In the framework of stage 1 – approval of the security fences and obstacles in the “Seamline Area” and in Greater Jerusalem, for the purpose of preventing the penetration of terrorists from the area of Judea and Samaria into Israel.

 

(4) The fence, like the other obstacles, is a security measure. Its construction does not mark a national border or any other border.

           

          ….         

 

(6) The precise and final location of the fence will be established by the Prime Minister and the Minister of Defense … the final location will be presented before the Ministers’ Committee on National Security or before the government.

 

5. The Ministers’ Committee on National Security approved (August 14, 2002) the final location of the obstacle.  The Prime Minister and the Minister of Defense approved (December 2002) stage 2 of the obstacle from Salam village east to the Jordan River, 60 km long, and an extension, a few kilometers long, from Mount Avner (adjacent to El-Mouteelah village) in the Southern Gilboa range to the village of Tayseer.

 

6. The Ministers’ Committee on National Security decided (on September 5, 2003) to construct stage 3 of the obstacle in the Greater Jerusalem area (except in the Ma’ale Adumim area). The length of this obstacle is 64 km. The government, on October 1, 2003, set out its decision regarding stages 3 and 4 of the obstacle:

 

1. The Government reiterates its decision regarding the importance of the “Seamline Area” and emphasizes the security need for the obstacle in the “Seamline Area” and in “Greater Jerusalem.”

 

2. Therefore:

 

1. We approve the construction of the obstacle for the prevention of terror activities according to the stages and location as presented today before us by the armed forces (the map of the stages and location of the fence is on file in the government secretariat).

 

2. The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the “Seamline Area,” is a security measure for the prevention of terror attacks and does not mark a national border or any other border.

 

3. Local changes, either of the location of the obstacle or of its implementation, will be brought before the Minister of Defense and the Prime Minister for approval.

 

4. The Prime Minister, the Minister of Defense, and the Finance Minister shall calculate the budget necessary for implementation of this decision as well as its financial schedule. The computation shall be brought before the government for approval.

 

5. In this framework, additional immediate security steps for the defense of Israelis in Judea and Samaria during the period of construction of the obstacle in the “Seamline Area” shall be agreed upon.

 

6. During the planning, every effort shall be made to minimize, to the extent possible, the disturbances to the daily lives of the Palestinians due to the construction of the obstacle.

 

The location of this fence, which passes through areas west of Jerusalem, stands at the heart of the dispute between the parties.

 

       The Separation Fence

      

7. The “Seamline” obstacle is composed of several components. In its center stands a “smart” fence. The purpose of the fence is to alert the forces deployed along its length of any attempt at infiltration. On the fence’s external side lies an anti-vehicle obstacle, composed of a trench or another means, intended to prevent vehicles from breaking through the fence by slamming up against it. There is an additional delaying fence. Near the fence a service road is paved. On the internal side of the electronic fence, there are a number of roads: a dirt road (for the purpose of discovering the tracks of those who pass the fence), a patrol road, and a road for armored vehicles, as well as an additional fence. The average width of the obstacle, in its optimal form, is 50 – 70 meters.  Due to constraints, a narrower obstacle, which includes only the components supporting the electronic fence, will be constructed in specific areas.  In certain cases the obstacle can reach a width of 100 meters, due to topographical conditions. In the area relevant to this petition, the width of the obstacle will not exceed 35 meters, except in places where a wider obstacle is necessary for topographical reasons.  In the area relevant to this petition, the fence is not being replaced by a concrete wall. Efforts are being made to minimize the width of the area of which possession will be taken de facto. Various means to help prevent infiltration will be erected along the length of the obstacle. The IDF and the border police will patrol the separation fence, and will be called to locations of infiltration, in order to frustrate the infiltration and to pursue those who succeed in crossing the security fence.  Hereinafter, we will refer to the entire obstacle on the “Seamline” as “the separation fence.”

 

       The Seizure Proceedings

 

8. Parts of the separation fence are being erected on land which is not privately owned.  Other parts are being erected on private land. In such circumstances – and in light of the security necessities – an order of seizure is issued by the Commander of the IDF Forces in the area of Judea and Samaria (respondent 2). Pursuant to standard procedure, every land owner whose land is seized will receive compensation for the use of his land. After the order of seizure is signed, it is brought to the attention of the public, and the proper liaison body of the Palestinian Authority is contacted. An announcement is relayed to the residents, and each interested party is invited to participate in a survey of the area affected by the order of seizure, in order to present the planned location of the fence.  A few days after the order is issued, a survey is taken of the area, with the participation of the landowners, in order to point out the land which is about to be seized.

 

After the survey, a one week leave is granted to the landowners, so that they may submit an appeal to the military commander. The substance of the appeals is examined.  Where it is possible, an attempt is made to reach understandings with the landowners. If the appeal is denied, leave of one additional week is given to the landowner, so that he may petition the High Court of Justice.

 

The Petition

 

9. The petition, as originally worded, attacked the orders of seizure regarding lands in the villages of Beit Sourik, Bidu, El Kabiba, Katane, Beit A’anan, Beit Likia, Beit Ajaza and Beit Daku.  These lands are adjacent to the towns of Mevo Choron, Har Adar, Mevasseret Zion, and the Jerusalem neighborhoods of Ramot and Giv’at Zeev, which are located west and northwest of Jerusalem.  Petitioners are the landowners and the village councils affected by the orders of seizure. They argue that the orders of seizure are illegal. As such, they should be voided or the location of the separation fence should be changed. The injury to petitioners, they argue, is severe and unbearable. Over 42,000 dunams of their lands are affected. The obstacle itself passes over 4,850 dunams, and will separate between petitioners and more than 37,000 dunams, 26,500 of which are agricultural lands that have been cultivated for many generations. Access to these agricultural lands will become difficult and even impossible.  Petitioners’ ability to go from place to place will depend on a bureaucratic permit regime which is labyrinthine, complex, and burdensome. Use of local water wells will not be possible.  As such, access to water for crops will be hindered. Shepherding, which depends on access to these wells, will be made difficult. Tens of thousands of olive and fruit trees will be uprooted.  The fence will separate villages from tens of thousands of additional trees. The livelihood of many hundreds of Palestinian families, based on agriculture, will be critically injured.  Moreover, the separation fence injures not only landowners to whom the orders of seizure apply; the lives of 35,000 village residents will be disrupted. The separation fence will harm the villages’ ability to develop and expand. The access roads to the urban centers of Ramallah and Bir Naballa will be blocked off.  Access to medical and other services in East Jerusalem and in other places will become impossible. Ambulances will encounter difficulty in providing emergency services to residents. Children’s access to schools in the urban centers, and of students to universities, will be impaired. Petitioners argue that these injuries cannot be justified.

 

10. Petitioners’ argument is that the orders are illegal in light of Israeli administrative law, and in light of the principles of public international law which apply to the dispute before us. First, petitioners claim that respondent lacks the authority to issue the orders of seizure. Were the route of the separation fence to pass along Israel’s border, they would have no complaint.  However, this is not the case. The route of the separation fence, as per the orders of seizure, passes through areas of Judea and Samaria.  According to their argument, these orders alter the borders of the West Bank with no express legal authority. It is claimed that the separation fence annexes areas to Israel in violation of international law. The separation fence serves the needs of the occupying power and not the needs of the occupied area.  The objective of the fence is to prevent the infiltration of terrorists into Israel; as such, the fence is not intended to serve the interests of the local population in the occupied area, or the needs of the occupying power in the occupied area. Moreover, military necessity does not require construction of the separation fence along the planned route. The security arguments guiding respondents disguise the real objective: the annexation of areas to Israel. As such, there is no legal basis for the construction of the fence, and the orders of seizure which were intended to make it possible are illegal. Second, petitioners argue that the procedure for the determination of the route of the separation fence was illegal. The orders were not published and were not brought to the knowledge of most of the affected landowners; petitioners learned of them by chance, and they were granted extensions of only a few days for the submission of appeals. Thus, they were not allowed to participate in the determination of the route of the separation fence, and their arguments were not heard.

 

11.  Third, the separation fence violates many fundamental rights of the local inhabitants, illegally and without authority.  Their right to property is violated by the very taking of possession of the lands and by the prevention of access to their lands. In addition, their freedom of movement is impeded. Their livelihoods are hurt and their freedom of occupation is restricted. Beyond the difficulties in working the land, the fence will make the trade of farm produce difficult. The fence detracts from the educational opportunities of village children, and throws local family and community life into disarray.  Freedom of religion is violated, as access to holy places is prevented.  Nature and landscape features are defaced.  Petitioners argue that these violations are disproportionate and are not justified under the circumstances. The separation fence route reflects collective punishment, prohibited by international law. Thus, respondent neglects the obligation, set upon his shoulders by international law, to make normal and proper life possible for the inhabitants of Judea and Samaria.  The security considerations guiding him cannot, they claim, justify such severe injury to the local inhabitants. This injury does not fulfill the requirements of proportionality.  According to their argument, despite the language of the orders of seizure, it is clear that the fence is not of a temporary character, and the critical wound it inflicts upon the local population far outweighs its benefits.

 

The Response to the Petition

 

12.  Respondents, in their first response, argued that the orders of seizure and the route through which the separation fence passes are legal. The separation fence is a project of utmost national importance.  Israel is in the midst of actual combat against a wave of terror, supported by the Palestinian population and leadership. At issue are the lives of the citizens and residents of Israel, who are threatened by terrorists who infiltrate into the territory of Israel. At issue are the lives of Israeli citizens residing in the area. The construction of the separation fence system must be completed with all possible speed. The separation fence has already proved its efficacy in areas where it has been erected. It is urgent that it also be erected in the region of petitioners’ villages. Respondents claim that a number of terror attacks against Jerusalem and against route no. 443, which connects Jerusalem and the city of Modi’in, have originated in this area. The central consideration in choosing the route of the separation fence was the operational-security consideration. The purpose of the fence is to prevent the uncontrolled passage of residents of the area into Israel and into Israeli towns located in the areas. The separation fence is also intended to prevent the smuggling of arms, and to prevent the infiltration of Palestinians, which will likely to lead to the establishment of terror cells in Israel and to new recruits for existing cells. Additionally, the forces acting along the obstacle, and Israeli towns on both sides of it, must be protected. As dictated by security considerations, the area of the separation fence must have topographic command of its surroundings. This is in order to allow surveillance and to prevent attacks upon the forces guarding it.  To the extent possible, a winding route must be avoided.  In addition, a “security zone” is required to provide warning of possible terrorist infiltration into Israel. Thus, in appropriate places, in order to make pursuit possible in the event of infiltration, the fence must pass through the area. An additional security consideration is the fact that, due to construction of the obstacle, attempted attacks will be concentrated on Israeli towns adjacent to the fence, which also must be protected.

 

13.  Respondents explain that, in planning the route of the separation fence, great weight was given to the interests of the residents of the area, in order to minimize, to the extent possible, the injury to them. Certain segments of the fence are brought before the State Attorney for prior examination and, if necessary, before the Attorney-General as well.  An effort is being made to lay the obstacle along property that is not privately owned or agriculturally cultivated; consideration is given to the existing planning schemes of Palestinian and Israeli towns; an effort is being made to refrain from cutting lands off from their owners.  In the event of such a cutoff, agricultural gateways will allow farmers access to their lands. New roads will be paved which will provide for the needs of the residents.  In cases where damage cannot be avoided, landowners will be compensated for the use of their seized lands. Efforts will be made to transfer agricultural crops instead of cutting them down. Prior to seizure of the land, the inhabitants will be granted the opportunity to appeal. Respondents assert that they are willing to change the route in order to minimize the damage.  Respondents declared, in addition, that they intend to erect permanent checkpoints east of certain villages, which will be open 24 hours a day, every day of the year, and which will allow the preservation of the fabric of life in the area.  It has also been decided to improve the road system between the villages involved in this petition, in order to tighten the bonds between them, and between them and Ramallah. Likewise, the possibility of paving a road to enable free and speedy passage from the villages to Ramallah is being examined.  All these considerations were taken into account in the determination of the route. The appeals of local inhabitants injured by the route are currently being heard. All this, claim respondents, amounts to a proper balance between consideration for the local inhabitants and between the need to protect the lives of Israeli citizens, residents, and soldiers.

 

14.  Respondents claim that the process of seizure was legal.  The seizure was brought to the knowledge of petitioners, and they were given the opportunity to participate in a survey and to submit appeals.  The contractors responsible for building the obstacle are instructed to move (as opposed to cutting down) trees wherever possible.  This is the current practice regarding olive trees. Some buildings, in cooperation with landowners to the extent possible, are taken down and transferred to agreed locations. Respondents argue that the inhabitants did not always take advantage of the right to have their arguments heard.

 

15. Respondent’s position is that the orders of seizure are legal.  The power to seize land for the obstacle is a consequence of the natural right of the State of Israel to defend herself against threats from outside her borders. Likewise, security officials have the power to seize lands for combat purposes, and by the laws of belligerent occupation.  Respondents do not deny the need to be considerate of the injury to the local population and to keep that injury proportionate; their claim is that they fulfill these obligations.  Respondents deny the severity of the injury claimed by petitioners.  The extent of the areas to be seized for the building of the fence, the injury to agricultural areas, and the injury to trees and groves, are lesser – by far – than claimed.  All the villages are connected to water systems and, as such, damage to wells cannot prevent the supply of water for agricultural and other purposes. The marketing of agricultural produce will be possible even after the construction of the fence.  In each village there is a medical clinic, and there is a central clinic in Bidu. A few archeological sites will find themselves beyond the fence, but these sites are neglected and not regularly visited. The educational needs of the local population will also be taken into account. Respondents also note that, in places where the separation fence causes injury to the local population, efforts are being made to minimize that injury.  In light of all this, respondents argue that the petitions should be denied.   

 

The Hearing of the Petition

 

16.  Oral arguments were spread out over a number of hearings.  During this time, the parties modified the formulation of their arguments. In light of these modifications, respondent was willing to allow changes in part of the route of the separation fence.  In certain cases the route was changed de facto. Thus, for example, it was changed next to the town of Har Adar, and next to the village of Beit Sourik.  This Court (President A. Barak, Vice-President (ret.) T. Or, and Vice-President E. Mazza) heard the petition (on February 29, 2004). The remainder of the hearing was postponed for a week in order to allow the sides to take full advantage of their right to have their arguments heard and to attempt to reach a compromise. We ordered that no work on the separation fence in the area of the petition be done until the next hearing.

 

The next hearing of the petition was on March 17, 2004. Petitioners submitted a motion to file additional documents, the most important of which was an affidavit prepared by members of the Council for Peace and Security, which is a registered society of Israelis with a background in security, including high ranking reserve officers, including Major General (res.) Danny Rothchild, who serves as president of the Council, Major General (res.) Avraham Adan (Bren), Commissioner (emeritus) Shaul Giv’oli, who serves as the general manager of the Council, and Colonel (res.) Yuval Dvir. The affidavit was signed by A. Adan, S. Giv’oli and Y. Dvir.  The society, which sees itself as nonpartisan, was, it argued, among the first to suggest a separation fence as a solution to Israel’s security needs.  The affidavit included detailed and comprehensive comments regarding various segments of this route, and raised reservations about them from a security perspective. The claims in the affidavit were serious and grave.  After reading them, we requested (on March 17, 2004) the comments of Respondent, The Commander of IDF Forces in the area of Judea and Samaria, Lieutenant-General Moshe Kaplinsky.

 

17.  This Court (President A. Barak, Vice-President E. Mazza, and Justice M. Cheshin) resumed the hearing of the petition (on March 31, 2004).  Just prior to reconvening, we granted (on March 23, 2004) petitioners’ motion to amend their petition such that it would include additional orders issued by respondent: Tav/110/03  (concerning the area located north of the Beit Daku village in the Giv’at Ze’ev area); Tav/104/03 and Tav/105/03 (concerning areas located southeast of the town of Maccabim and south of the village of Beit Lakia). After we heard (on March 31, 2004) the parties’ arguments, we decided to issue an order nisi, to the extent relevant to the villages and petitioners, and to narrow the application of the temporary injunction, such that it would not apply to the segment between Beit Ajaza and New Giv’on, and the segment between the Beit Chanan riverbed and the ascent to Jebel Muktam. We further decided to narrow the injunction, such that respondent would refrain from making irrevocable changes in the segment north of Har Adar, and in the segment between the villages of A-Tira and Beit Daku.  We have noted respondents’ announcement that if it turns out that the building of the obstacle at these locations was illegal, proper compensation will be given to all who suffered injury. See our order of March 31, 2004. We continued to hear the arguments of the parties (on April 16, April 21, and May 2, 2004).  Petitioners submitted an alternate route for construction of the separation fence.  Additional affidavits were submitted by the Council for Peace and Security and by respondent.  An opinion paper on the ecological effects of the route of the fence was submitted for our review.  Pursuant to our request, detailed relief models representing the topography of the area through which the obstacle passes were submitted.  The relief models showed the route of the obstacle, as set out by respondent, as well as the alternate routes proposed by petitioners. In addition, a detailed aerial photograph of these routes was submitted.

 

18.  Members of the Council for Peace and Security moved to be joined as amici curiae.  Pursuant to the stipulation of the parties, an additional affidavit (of April 15, 2004) submitted (by Major General (res.) D. Rothchild who serves as the president of the council, as well as by A. Adan, S. Giv’oli and Y. Dvir) was joined to the petition, without ruling that this position was identical to petitioners’.  In the opinion of the council members, the separation fence must achieve three principle objectives: it must serve as an obstacle to prevent, or at least delay, the entry of terrorists into Israel; it must grant warning to the armed forces in the event of an infiltration; and it must allow control, repair, and monitoring by the mobile forces posted along it. In general, the fence must be far from the houses of the Palestinian villages, not close to them. If the fence is close to villages, it is easier to attack forces patrolling it.  Building the fence in the manner set out by respondent will require the building of passages and gateways, which will engender friction; the injury to the local population and their bitterness will increase the danger to security.  Such a route will make it difficult to distinguish between terrorists and innocent inhabitants. Thus, the separation fence must be distanced from the Palestinian homes, and transferred, accordingly, to the border of the area of Judea and Samaria.  In their opinion, the argument that the fence must be built at a distance from Israeli towns in order to provide response time in case of infiltration, can be overcome by the reinforcement of the obstacle near Israeli towns.  Distancing the planned route from Israeli towns in order to seize distant hilltops with topographical control is unnecessary, and has serious consequences for the length of the separation fence, its functionality, and for attacks on it.  In an additional affidavit (from April 18, 2004), members of The Council for Peace and Security stated that the desire of the commander of the area to prevent direct flat-trajectory fire upon the separation fence causes damage from a security perspective.  Due to this desire, the fence passes through areas that, though they have topographical control, are superfluous, unnecessarily injuring the local population and increasing friction with it, all without preventing fire upon the fence.

 

19.  Petitioners, pointing to the affidavits of the Council for Peace and Security, argue that the route of the separation fence is disproportionate.  It does not serve the security objectives of Israel, since establishing the route adjacent to the houses of the Palestinians will endanger the state and her soldiers who are patrolling along the fence, as well as increasing the general danger to Israel’s security. In addition, such a route is not the least injurious means, since it is possible to move the route farther away from petitioners’ villages and closer to Israel.  It will be possible to overcome the concern about infiltration by reinforcing the fence and its accompanying obstacles.

 

20.  Respondent recognizes the security and military experience of those who signed the affidavit.  However, he emphasizes that the responsibility for protecting the residents of Israel from security threats remains on his shoulders and on those of the security officials.  The disagreement is between experts on security.  Regarding such a disagreement, the opinion of the expert who is also responsible for security bears the greater weight.  Respondent accepts that the border between Israel and Judea and Samaria must be taken into consideration when establishing the route of the separation fence, in order to minimize injury to residents of the area and to the fabric of their lives.  He argues, however, that the border is a political border and not a security border.  The security objective of the fence is not only to separate Israel from the residents of the area of Judea and Samaria, it must also ensure a security zone to allow the pursuit of terrorists who cross the separation fence before they enter Israel. The fence route must prevent direct fire by the Palestinians, it must protect the soldiers guarding the fence, and must also take topographical considerations into account. In light of all this, it is proper, under appropriate circumstances, to move the route of the separation fence within the areas of Judea and Samaria.  The military commander concedes that moving the separation fence proximate to houses of Palestinians is likely to cause difficulties, but this is only one of the considerations which must be taken into account.  Reinforcement of the fence adjacent to Israeli towns does not provide a solution to the danger of shooting attacks, and does not prevent infiltration into them.  Likewise, such a step does not take into consideration the engineering issues of moving the route of the fence.  Regarding the route of the fence itself, respondent notes that, after examining the material before him, he is willing to change part of the route.  This is especially so regarding the route adjacent to the town of Har Adar and east of it, adjacent to the villages of Beit Sourik and Bidu.  The remainder of the route proposed by petitioners does not provide an appropriate solution to the security needs that the fence is intended to provide.

 

21. Parties presented arguments regarding the environmental damage of the separation fence. Petitioners submitted, for our review, expert opinion papers (dated April 15, 2004), which warn of the ecological damage that will be caused by the separation fence. The separation fence route will damage animal habitats and will separate animal populations from vegetation, damaging the ecosystem in the area.  The longer and wider the route of the fence, the more severe the damage. Therefore, it is important to attempt to shorten the route of the fence, and to avoid unnecessary curves. The building of passageways for small animals into the fence, such as pipes of 20-30 cm. diameter, should be considered.  The fence will also mar virgin landscape that has remained untouched for millennia.  Respondents replied with an opinion paper prepared by an expert of the Nature and Parks Authority. It appears, from his testimony, that there will indeed be ecological damage, but the damage will be along any possible route of the fence.  It would have been appropriate to maintain passageways in the separation fence for small animals, but that proposal was rejected by the security agencies and is, in any case, irrelevant to the question of the route.  From the testimony it also appears that representatives of the Nature and Parks Agency are involved in the planning of the fence route, and efforts are being made to minimize ecological damage.

 

22. A number of residents of Mevasseret Zion, which is adjacent to the Beit Sourik village, requested to join as petitioners in this petition. They claim that the fence route should be immediately adjacent to the green line, in order to allow residents of the Beit Sourik village to work their land.  In addition, they claim that the gates which will allow the passage of farmers are inefficient, that they will obstruct access to the fields, and that they will violate the farmer’s dignity.  Furthermore, they point out the decline of relations with the Palestinian population in the area which, as a consequence of the desire to construct the separation fence on its land, has turned from a tranquil population into a hostile one. On the opposing side, Mr. Efraim Halevy requested to join as a respondent in the petition.  He argues that moving the route of the fence adjacent to the Green Line will endanger the residents of Mevasseret Zion. It will bring the route closer to the houses and schools in the community.  He also points out the terrorist activity which has taken place in the past in the Beit Sourik area. Thus, the alternate route proposed by petitioners should be rejected.  He claims that this position reflects the opinions of many residents of Mevasseret Zion. After reading the motions, we decided to accept them, and we considered the arguments they presented.

 

       The Normative Framework

 

23. The general point of departure of all parties – which is also our point of departure – is that Israel holds the area in belligerent occupation (occupatio bellica). See HCJ 619/78 “El Tal’ia” Weekly v. Minister of Defense; HCJ 69/81 Abu Ita v. Commander of the Area of Judea and Samaria; HCJ 606/78 Ayoob v. Minister of Defense; HCJ 393/82 Jam'iat Ascan Elma’almoon Eltha’aooniah Elmahduda Elmaoolieh v. Commander of the IDF Forces in the Area of Judea and Samaria. In the areas relevant to this petition, military administration, headed by the military commander, continues to apply. Compare HCJ 2717/96 Wafa v. Minister of Defense (application of the military administration in “Area C”).  The authority of the military commander flows from the provisions of public international law regarding belligerent occupation. These rules are established principally in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 [hereinafter – the Hague Regulations].  These regulations reflect customary international law.  The military commander’s authority is also anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949. [hereinafter – the Fourth Geneva Convention]. The question of the application of the Fourth Geneva Convention has come up  more than once in this Court.  See HCJ 390/79 Duikat v. Government of Israel; HCJ 61/80 Haetzni v. State of Israel, at 597.  The question is not before us now, since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review.  See HCJ 698/80 Kawasme v. Minister of Defense; Jam'iyat Ascan, at 794; Ajuri, at 364; HCJ 3278/02 Center for the Defense of the Individual v. Commander of the IDF Forces in the West Bank Area, at 396. See also Meir Shamgar, The Observance of International Law in the Administered Territories, 1 Israel Yearbook on Human Rights 262 (1971).

 

24.  Together with the provisions of international law, “the principles of the Israeli administrative law regarding the use of governing authority” apply to the military commander.  See Jam'iyat Ascan, at 793. Thus, the norms of substantive and procedural fairness (such as the right to have arguments heard before expropriation, seizure, or other governing actions), the obligation to act reasonably, and the norm of proportionality apply to the military commander.  See Abu Ita, at 231; HCJ 591/88 Taha v. Minister of Defense, at 52; Ajuri, at 382; HJC 10356/02 ­­­­­Hess v. Commander of the IDF Forces in the West Bank. Indeed, “[e]very Israeli soldier carries, in his pack, the provisions of public international law regarding the laws of war and the basic provisions of Israeli administrative law.”  Jam'iyat Ascan, at 810.

 

25.  This petition raises two separate questions. The first question: is the military commander in Judea and Samaria authorized, by the law applying to him, to construct the separation fence in Judea and Samaria?  An affirmative answer to this question raises a second question concerning the location of the separation fence. Both questions were raised before us in the petition, in the response, and in the parties’ arguments. The parties, however, concentrated on the second question; only a small part of the arguments before us dealt with the first question. The question of the authority to erect the fence in the area is complex and multifaceted, and it did not receive full expression in the arguments before us.  Without exhausting it, we too shall occupy ourselves briefly with the first question, dealing only with the arguments raised by the parties, and will then move to focus our discussion on the second question.

 

Authority to Erect the Separation Fence

 

26. Petitioners rest their assertion that the military commander does not have authority to construct the fence on two claims. The first is that the military commander does not have the authority to order construction of the fence since his decision is founded upon political – and not military – considerations.

 

27.  We accept that the military commander cannot order the construction of the separation fence if his reasons are political. The separation fence cannot be motivated by a desire to “annex” territories to the state of Israel. The purpose of the separation fence cannot be to draw a political border. In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire land of Israel. This question was answered by this Court in the negative.  The Vice-President of this Court, Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin), regarding the right of the Jewish people to settle in Judea and Samaria. In his judgment, Justice Landau stated:

 

The view regarding the right of the Jewish people, expressed in these words, is built upon Zionist ideology. However, the question before this Court is whether this ideology justifies the taking of the property of the individual in an area under control of the military administration. The answer to that depends upon the interpretation of article 52 of the Hague Regulations.  It is my opinion that the needs of the army mentioned in that article cannot include, by way of any reasonable interpretation, national security needs in broad meaning of the term.

 

In the same spirit I wrote, in Jam’iyat Ascan, at 794, that

 

The military commander is not permitted to take the national, economic, or social interests of his own country into account . . . even the needs of the army are the army’s military needs and not the national security interest in the broad meaning of the term.

 

In Jam’iyat Ascan, we discussed whether the military commander is authorized to expand a road passing through the area. In this context I wrote, at 795:

 

The military administration is not permitted to plan and execute a system of roads in an area held in belligerent occupation, if the objective is only to construct a ”service road” for his own country.  The planning and execution of a system of roads in an occupied territory can be done for military reasons . . . the planning and execution of a system of roads can be done for reasons of the welfare of the local population.  This planning and execution cannot be done in order to serve the occupying country.

 

Indeed, the military commander of territory held in belligerent occupation must balance between the needs of the army on one hand, and the needs of the local inhabitants on the other.  In the framework of this delicate balance, there is no room for an additional system of considerations, whether they be political considerations, the annexation of territory, or the establishment of the permanent borders of the state.  This Court has emphasized time and time again that the authority of the military commander is inherently temporary, as belligerent occupation is inherently temporary.  Permanent arrangements are not the affair of the military commander.  True, the belligerent occupation of the area has gone on for many years. This fact affects the scope of the military commander’s authority.  See Jam’iyat Ascan, at 800.  The passage of time, however, cannot extend the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation. 

 

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

 

29.  The Commander of the IDF Forces in the area of Judea and Samaria (respondent no. 2), Major General M. Kaplinsky, submitted an affidavit to the Court.  In his affidavit he stated that “the objective of the security fence is to help contend with the threat of Palestinian terror.  Specifically, the fence is intended to prevent the unchecked passage of inhabitants of the area into Israel and their infiltration into Israeli towns located in the area. Based on this security consideration we determined the topographic route of the fence.” (affidavit of April 15, sections 22-23). The commander of the area detailed his considerations for the choice of the route. He noted the necessity that the fence pass through territory that topographically controls its surroundings, that, in order to allow surveillance of it, its route be as flat as possible, and that a “security zone” be established which will delay infiltration into Israel. These are security considerations par excellence. In an additional affidavit, Major General Kaplinsky testified that “it is not a permanent fence, but rather a temporary fence erected for security needs.” (affidavit of April 19, 2004, section 4).  We have no reason not to give this testimony less than full weight, and we have no reason not to believe the sincerity of the military commander.

 

30. Petitioners, by pointing to the route of the fence, attempt to prove that the construction of the fence is not motivated by security considerations, but by political ones.  They argue that if the fence was primarily motivated by security considerations, it would be constructed on the “Green Line,” that is to say, on the armistice line between Israel and Jordan after the War of Independence.  We cannot accept this argument. The opposite is the case: it is the security perspective – and not the political one – which must examine the route on its security merits alone, without regard for the location of the Green Line. The members of the Council for Peace and Security, whose affidavits were brought before us by agreement of the parties, do not recommend following the Green Line. They do not even argue that the considerations of the military commander are political. Rather, they dispute the proper route of the separation fence based on security considerations themselves. 

 

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

 

32. Petitioner second argument is that the construction of the fence in the area is based, in a large part, on the seizure of land privately owned by local inhabitants, that this seizure is illegal, and that therefore the military commander’s authority has no to construct the obstacle. We cannot accept this argument. We found no defect in the process of issuing the orders of seizure, or in the process of granting the opportunity to appeal them.  Regarding the central question raised before us, our opinion is that the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if this is necessary for the needs of the army.  See articles 23(g) and 52 of the Hague Convention; article 53 of the Fourth Geneva Convention.  He must, of course, provide compensation for his use of the land.  See HCJ 606/78 Ayoob v. Minster of Defense; HCJ 401/88 Abu Rian v. Commander of the IDF Forces in the Area of Judea and Samaria; Timraz.  Indeed, on the basis of the provisions of the Hague Convention and the Geneva Convention, this Court has recognized the legality of land and house seizure for various military needs, including the construction of military facilities (HCJ 834/78 Salama v. Minister of Defense), the paving of detour roads (HCJ 202/81 Tabib v. Minister of Defense; Wafa), the building of fences around outposts (Timraz), the temporary housing of soldiers (HCJ 290/89 Jora v. Commander of IDF Forces in Judea and Samaria), the ensuring of unimpaired traffic on the roads of the area (Abu Rian), the construction of civilian administration offices (HCJ 1987/90 Shadid v. Commander of IDF Forces in the Area of Judea and Samaria), the seizing of buildings for the deployment of a military force, (HCJ 8286/00 Association for Civil Rights in Israel v. Commander of the IDF Forces in the Area of Judea and Samaria). Of course, regarding all these acts, the military commander must consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework.  The infringement of property rights is insufficient, in and of itself, to take away the authority to build it. It is permitted, by the international law applicable to an area under belligerent occupation, to take possession of an individual’s land in order to erect the separation fence upon it, on the condition that this is necessitated by military needs. To the extent that construction of the fence is a military necessity, it is permitted, therefore, by international law. Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers. The building of the obstacle, to the extent it is done out of military necessity, is within the authority of the military commander.  Of course, the route of the separation fence must take the needs of the local population into account. That issue, however, concerns the route of the fence and not the authority to erect it. After reaching this conclusion, we must now contend with the second question before us – the question that constituted the main part of the arguments before us. This question is the legality of the location and route of the separation fence. We will now turn to this question.

 

The Route of the Separation Fence

 

33.  The focus of this petition is the legality of the route chosen for construction of the separation fence.  This question stands on its own, and it requires a straightforward, real answer.  It is not sufficient that the fence be motivated by security considerations, as opposed to political considerations.  The military commander is not at liberty to pursue, in the area held by him in belligerent occupation, every activity which is primarily motivated by security considerations. The discretion of the military commander is restricted by the normative system in which he acts, and which is the source of his authority. Indeed, the military commander is not the sovereign in the occupied territory. See Oppenheim, The Legal Relations Between an Occupying Power and the Inhabitants, 33 Law Q. Rev., 363, 364 (1917); Y. Dinstein, The Law of War 210 (1983).  He must act within the law which establishes his authority in a situation of belligerent occupation.  What is the content of this law?

 

34.  The law of belligerent occupation recognizes the authority of the military commander to maintain security in the area and to protect the security of his country and her citizens.  However, it imposes conditions on the use of this authority. This authority must be properly balanced against the rights, needs, and interests of the local population:

 

The law of war usually creates a delicate balance between two poles:  military necessity on one hand, and humanitarian considerations on the other.

 

Dinstein, Legislative Authority in the Administered Territories, 2 Iyunei Mishpat 505, 509 (1973)

 

This Court has emphasized, in its case law since the Six Day War, that “together with the right to administer comes the obligation to provide for the well being of the population.” HCJ 337/71 Al-jamaya Al-masihiye L’alararchi Elmakdasa v. Minister of Defense, at 581 (Sussman, D.P.). 

 

The obligations and rights of a military administration are defined, on one hand, by its own military needs and, on the other, by the need to ensure, to the extent possible, the normal daily life of the local population.

 

HCJ 256/72 Jerusalem District Electric Company v. Defense Minister, at 138 (Landau, J.).

 

This doctrine … does not have to result in the restriction of the power to tax, if this power is necessary for the well being of the area and due to its needs, since a proper balance between those considerations and the needs of the ruling army is a central and constant consideration of a military administration.

 

Abu Ita, at 270 (Shamgar, V.P.) (emphasis in the original).

 

In J’mayat Ascan, at 794, I myself similarly wrote, more than twenty years ago, that:

 

The Hague Regulations revolve around two central axes: one – the ensuring of the legitimate security interests of the holder of a territory held in belligerent occupation; the other – the ensuring of the needs of the local population in the territory held in belligerent occupation.

 

In HCJ 72/86 Zaloom v. The IDF Commander for the Area of Judea and Samaria, at 532, I held:

 

In using their authority, respondents must consider, on one hand, security considerations and, on the other hand, the interests of the civilian population.  They must attain a balance between these different considerations.

 

See also Marab, at 365. Similarly:

 

The obligation of the military administration, defined in regulation 43 of the Hague Regulations, is to preserve the order and the public life of the local population, but to do so while properly balancing between the interests of the population in the territory, and the military and security needs of soldiers and citizens located in the territory.

 

HCJ 2977/91 Thaj v. Minister of Defense, at 474 (Levin, J.).

 

The Hague Convention authorizes the military commander to act in two central areas: one – ensuring the legitimate security interest of the holder of the territory, and the other – providing for the needs of the local population in the territory held in belligerent occupation …. The first need is military and the second is civilian-humanitarian.  The first focuses upon the security of the military forces holding the area, and the second focuses upon the responsibility for ensuring the well being of the residents.  In the latter area the military commander is responsible not only for the maintenance of the order and security of the inhabitants, but also for the protection of their rights, especially their constitutional human rights.  The concern for human rights stands at the center of the humanitarian considerations which the military commander must take into account.

 

Hess, at paragraph 8 (Procaccia, J.).

 

35.  This approach of this Court is well anchored in the humanitarian law of public international law.  This is set forth in Regulation 46 of the Hague Regulations and Article 46 of the Fourth Geneva Convention. Regulation  46 of the Hague Regulations provides:

 

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

 

Article 27 of the Fourth Geneva Convention provides:

 

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

 

These rules are founded upon a recognition of the value of man and the sanctity of his life. See Physicians for Human Rights, at para. 11.  Interpreting Article 27 of the Fourth Geneva Convention, Pictet writes:

 

Article 27 . . . occupies a key position among the articles of the Convention.  It is the basis of the Convention, proclaiming as it does the principles on which the whole “Geneva Law” is founded.  It proclaims the principle of respect for the human person and the inviolable character of the basic rights of individual men and women . . . the right of respect for the person must be understood in its widest sense:  it covers all the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers, it includes, in particular, the right to physical, moral and intellectual integrity – one essential attribute of the human person.

 

The rules in Regulation 46 of the Hague Regulations and in Article 27 of the Fourth Geneva Convention cast a double obligation upon the military commander:  he must refrain from actions that injure the local inhabitants.  This is his “negative” obligation. He must take the legally required actions in order to ensure that the local inhabitants shall not be injured.  This is his “positive” obligation.  See Physicians for Human Rights. In addition to these fundamental provisions, there are additional provisions that deal with specifics, such as the seizure of land. See Regulation 23(g) and 52 of the Hague Regulations; Article 53 of the Fourth Geneva Convention. These provisions create a single tapestry of norms that recognizes both human rights and the needs of the local population as well recognizing security needs from the perspective of the military commander. Between these conflicting norms, a proper balance must be found.  What is that balance?

 

Proportionality

 

36.  The problem of balancing between security and liberty is not specific to the discretion of a military commander of an area under belligerent occupation.  It is a general problem in the law, both domestic and international.  Its solution is universal.  It is found deep in the general principles of law, including reasonableness and good faith. See B. Cheng, General Principles of Law as Applied By International Courts and Tribunals (1987); T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989); S. Rosenne, The Perplexities of Modern International Law 63 (2002).  One of those foundational principles which balance between the legitimate objective and the means of achieving it is the principle of proportionality.  According to it, the liberty of the individual can be limited (in this case, the liberty of the local inhabitants under belligerent occupation), on the condition that the restriction is proportionate.  This approach crosses through all branches of law.  In the framework of the petition before us, its importance is twofold: first, it is a basic principle in international law in general and specifically in the law of belligerent occupation; second, it is a central standard in Israeli administrative law which applies to the area under belligerent occupation.  We shall now briefly discuss each of these.

 

37.  Proportionality is recognized today as a general principle of international law. See Meron, at 65; R. Higgins, Problems and Process: International Law and How We Use It 219 (1994); Delbruck, Proportionality, 3 Encyclopedia of Public International Law 1140, 1144 (1997).  Proportionality plays a central role in the law regarding armed conflict.  During such conflicts, there is frequently a need to balance between military needs and humanitarian considerations.  See Gardam,  Proportionality and Force in International Law, 87 Am. J. Int’l L. 391 (1993); Garden, Legal Restraints on Security Council Military Enforcement Action, 17 Mich. J. Int’l L. 285 (1996); Dinstein, Military Necessity, 3 Encyclopedia of Public International Law 395 (1997); Medenica, Protocol I and Operation Allied Force: Did NATO Abide by Principles of  Proportionality ?, 23 Loy. L. A. Int’l & Comp. L. Rev. 329 (2001); Roberts, The Laws of War in the War on Terror, 32 Isr. Yearbook of Hum. Rights. 1999 (2002).  Proportionality is a standard for balancing.  Pictet writes:

 

In modern terms, the conduct of hostilities, and, at all times the maintenance of public order, must not treat with disrespect the irreducible demands of humanitarian law.

 

From the foregoing principle springs the Principle of Humanitarian Law (or that of the law of war):

 

Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy.

 

J. S. Pictet, Developments and Principles of International Humanitarian Law 62 (1985). Similarly, Fenrick has stated:

 

[T]here is a requirement for a subordinate rule to perform the balancing function between military and humanitarian requirements. This rule is the rule of proportionality.

 

Fenrick, The Rule of  Proportionality and Protocol I in Conventional Warfare, 98 Military L. Rev. 91, 94 (1982). Gasser repeats the same idea:

 

International humanitarian law takes into account losses and damage as incidental consequences of (lawful) military operations … The criterion is the principle of proportionality.

 

Gasser, Protection of the Civilian Population, The Handbook of Humanitarian Law in Armed Conflicts 220 (D. Fleck ed., 1995).

 

38.  Proportionality is not only a general principle of international law. Proportionality is also a general principle of Israeli administrative law.  See Segal, The Cause of Action of Disproportionality in Administrative Law, HaPraklit 50 (1990); Zamir, The Administrative Law of Israel Compared to the Administrative Law of Germany, 2 Mishpat U’Mimshal 109, 130 (1994). At first a principle of our case law, then a constitutional principle, enshrined in article 8 of the Basic Law: Human Dignity and Freedom, it is today one of the basic values of the Israeli administrative law.  See HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, at 435; HCJ 3477/95 Ben-Atiyah v. Minister of Education, Culture & Sports; HCJ 1255/94 Bezeq v. Minister of Communications, at 687; HCJ 3643/97 Stamka v. Minister of Interior; HCJ 4644/00 Tavori v. The Second Authority for Television and Radio;  HCJ 9232/01 “Koach” Israeli Union of Organizations for the Defense of Animals v. The Attorney-General, at 261; D. Dorner, Proportionality, in 2 The Berenson Book 281 (A. Barak & C. Berenson eds., 1999).  The principle of proportionality applies to every act of the Israeli administrative authorities.  It also applies to the use of the military commander’s authority pursuant to the law of belligerent occupation.

 

39.  Indeed, both international law and the fundamental principles of Israeli administrative law recognize proportionality as a standard for balancing between the authority of the military commander in the area and the needs of the local population.  Indeed, the principle of proportionality as a standard restricting the power of the military commander is a common thread running through our case law. See Segal, Security Authority, Administrative  Proportionality and Judicial Review, 1 Iyunei Mishpat 477 (1993).  Thus, for example, this Court examined, by use of the standard of proportionality, the authority of the military commander regarding “an order assigning a place of residence.”  See Ajuri; HCJ 9552/03 Abed v. Commander of the IDF Forces in the West Bank; HCJ 9586/03 Sualmeh v. Commander of the IDF Forces in the Judea and Samaria Region. The standard of proportionality was likewise used to examine his authority to surround towns and position checkpoints on the access roads to and from them, in order to frustrate terror.  See HCJ 2847/03 Alauna v. Commander of the IDF Forces in Judea and Samaria; HCJ 2410/03 Elarja v. Commander of the IDF Forces in Judea and Samaria. The same applied to injury to the property of residents due to combat activities of the IDF (HCJ 9252/00 El Saka v. State of Israel); the establishment of entry routes for Israelis into the area and its declaration as “closed military territory” (HCJ 9293/01 Barakeh v. Minister of Defense); the means employed to protect the safety of worshippers and their access to holy places (Hess); the demolition of houses for operational needs (HCJ 4219/02 Joosin v. Commander of the IDF Forces in the Gaza Strip);  such demolition for deterrence purposes (HCJ 5510/92 Turkman v. Defense Minister, at 219; HCJ 1730/96 Sabih v. Commander of the IDF Forces in the Area of Judea and Samaria, at 364; HCJ 893/04 Farj v. Commander of the IDF Forcers in the West Bank);  the living conditions of detained suspects in the area (HCJ 3278/02 Center for Defense of the Individual v. Commander of the IDF Forces in the West Bank Area; HCJ 5591/02 Yassin v. Commander of Kziot Military Camp); the authority to arrest for investigation purposes and the denial of a meeting between a detainee and an attorney (Marab); the siege of those hiding in holy places (HCJ 3451/02 Almandi v. Minister of Defence, at 36);  and the regulation of the recording and identification of residents of the area (HCJ 2271/98 Abed v. Interior Minister).

 

The Meaning of Proportionality  and its Elements

 

40.  According to the principle of proportionality, the decision of an administrative body is legal only if the means used to realize the governmental objective is of proper proportion. The principle of proportionality focuses, therefore, on the relationship between the objective whose achievement is being attempted, and the means used to achieve it. This principle is a general one. It requires application. As such, both in international law, which deals with different national systems – from both the common law family (such as Canada) and the continental family (such as Germany) – as well as in domestic Israeli law, three subtests grant specific content to the principle of proportionality. See J. Schwarze, European Administrative Law 687 (1992); N. Emiliou, The Principle of Proportionality in European Law; A Comparative Study (1996); The Principle of Proportionality in the Laws of Europe (1999).

 

41.  The first subtest is that the objective must be related to the means. The means that the administrative body uses must be constructed to achieve the precise objective which the administrative body is trying to achieve.  The means used by the administrative body must rationally lead to the realization of the objective.  This is the “appropriate means” or “rational means” test.  According to the second subtest, the means used by the administrative body must injure the individual to the least extent possible.  In the spectrum of means which can be used to achieve the objective, the least injurious means must be used.  This is the “least injurious means” test.  The third test requires that the damage caused to the individual by the means used by the administrative body in order to achieve its objectives must be of proper proportion to the gain brought about by that means. That is the “proportionate means” test (or proportionality “in the narrow sense.”)  The test of proportionality “in the narrow sense” is commonly applied with “absolute values,” by directly comparing the advantage of the administrative act with the damage that results from it.  However, it is also possible to apply the test of proportionality in the narrow sense in a “relative manner.”  According to this approach, the administrative act is tested vis-à-vis an alternate act, whose benefit will be somewhat smaller than that of the former one. The original administrative act is disproportionate in the narrow sense if a certain reduction in the advantage gained by the original act – by employing alternate means, for example – ensures a substantial reduction in the injury caused by the administrative act.

 

42.  It is possible to say that the means used by an administrative authority are proportionate only if all three subtests are satisfied.  Satisfaction of one or two of these subtests is insufficient. All three of them must be satisfied simultaneously. Not infrequently, there are a number of ways that the requirement of proportionality can be satisfied. In these situations a “zone of proportionality” must be recognized (similar to a “zone of reasonableness.”) Any means chosen by the administrative body that is within the zone of proportionality is proportionate.  See Ben-Atiyah, at 13; HCJ 4769/95 Menachem v. Minister of Transportation, at 258.

 

43.  This principle of proportionality also applies to the exercise of authority by the military commander in an area under belligerent occupation.  Thus, for example, in Ajuri, the question arose whether restricting the area in which one can live – in that case, the transfer of local inhabitants from the area of Judea and Samaria to the Gaza Strip – was proportionate. Regarding the proportionality test, as applied in that case, I wrote:

 

Like the use of any other means, the means of restricting the area in which one can live must be also be used proportionately. The individual’s offense must be proportionate to the means employed by the authorities … an appropriate link is necessary between the objective of preventing danger from the person whose living area is restricted, and the danger if this means is not employed … it is necessary that the injury caused by the means employed be minimal; it is also necessary that the means of restricting the living area be of proper proportion to the security benefit to the area.

 

Id., at 373.

 

The  Proportionality of the Route of the Separation Fence

 

44. The principle of proportionality applies to our examination of the legality of the separation fence. This approach is accepted by respondents.  It is reflected in the government decision (of October 1, 2003) that “during the planning, every effort shall be made to minimize, to the extent possible, the disturbance to the daily lives of the Palestinians due to the construction of the obstacle.” The argument that the damage caused by the separation fence route is proportionate was the central argument of respondents.  Indeed, our point of departure is that the separation fence is intended to realize a security objective which the military commander is authorized to achieve.  The key question regarding the route of the fence is: is the route of the separation fence proportionate? The proportionality of the separation fence must be decided by the three following questions, which reflect the three subtests of proportionality. First, does the route pass the “appropriate means” test (or the “rational means” test)?  The question is whether there is a rational connection between the route of the fence and the goal of the construction of the separation fence.  Second, does it pass the test of the “least injurious” means?  The question is whether, among the various routes which would achieve the objective of the separation fence, is the chosen one the least injurious.  Third, does it pass the test of proportionality in the narrow sense?  The question is whether the separation fence route, as set out by the military commander, injures the local inhabitants to the extent that there is no proper proportion between this injury and the security benefit of the fence. According to the “relative” examination of this test, the separation fence will be found disproportionate if an alternate route for the fence is suggested that has a smaller security advantage than the route chosen by respondent, but which will cause significantly less damage than that original route. 

 

The Scope of Judicial Review

 

45.  Before we examine the proportionality of the route of the separation fence, it is appropriate that we define the character of our examination. Our point of departure is the assumption, which petitioners did not manage to negate, that the government decision to construct the separation fence is motivated by security, and not a political, considerations.  As such, we work under the assumption – which the petitioners also did not succeed in negating – that the considerations of the military commander based the route of the fence on military considerations that, to the best of his knowledge, are capable of realizing this security objective. In addition, we assume – and this issue was not even disputed in the case before us – that the military commander is of the opinion that the injury to local inhabitants is proportionate.  On the basis of this factual foundation, there are two questions before us. The first question is whether the route of the separation fence, as determined by the military commander, is well-founded from a military standpoint. Is there another route for the separation fence which better achieves the security objective? This constitutes a central component of proportionality. If the chosen route is not well-founded from the military standpoint, then there is no rational connection between the objective which the fence is intended to achieve and the chosen route (the first subtest); if there is a route which better achieves the objective, we must examine whether this alternative route inflicts a lesser injury (the second subtest).  The second question is whether the route of the fence is proportionate. Both these questions are important for the examination of proportionality.  However, they also raise separate problems regarding the scope of judicial review.  My colleague Justice M. Cheshin has correctly noted:

 

Different subjects require, in and of themselves, different methods of intervention.  Indeed, acts of state and acts of war do not change their character just because they are subject to the review of the judiciary, and the character of the acts, according to the nature of things, imprints its mark on the methods of intervention.

 

HCJ 1730/96 Sabih v. Commander of IDF forces in the Area of Judea and Samaria, at 369. We shall examine, therefore, the scope of intervention for each of the two questions before us, separately.

 

The Military Nature of the Route of the Separation Fence

 

46.  The first question deals with the military character of the route. It examines whether the route chosen by the military commander for the separation fence achieves its stated objectives, and whether there is no route which achieves this objective better. It raises problems within the realm of military expertise.  We, Justices of the Supreme Court, are not experts in military affairs.  We shall not examine whether the military commander’s military opinion corresponds to ours – to the extent that we have a opinion regarding the military character of the route. So we act in all questions which are matters of professional expertise, and so we act in military affairs as well. All we can determine is whether a reasonable military commander would have set out the route as this military commander did.  President Shamgar dealt with this idea, noting:

 

It is obvious, that a court cannot “slip into the shoes” of the deciding military official … In order to substitute the discretion of the commander with the discretion of the Court, we examine the question whether, in light of all of the facts, the employment of the means can be viewed as reasonable.

 

HCJ 1005/89 Aga v. Commander of the IDF Forces in the Gaza Strip Area, at 539. Similarly, in Ajuri, I wrote:

 

The Supreme Court, sitting as the High Court of Justice, reviews the legality of the military commander’s discretion. Our point of departure is that the military commander, and those who obey his orders, are civil servants holding public positions.  In exercising judicial review, we do not turn ourselves into experts in security affairs. We do not substitute the security considerations of the military commander with our own security considerations.  We take no position regarding the way security affairs are run.  Our task is to guard the borders and to maintain the boundaries of the military commander’s discretion …. It is true, that “the security of the state” is not a ”magic word” which makes judicial review disappear. Thus, we shall not be deterred from reviewing the decisions of the military commander … simply because of the important security considerations anchoring his decision.  However, we shall not substitute the discretion of the commander with our own discretion. We shall check the legality of the discretion of the military commander and ensure that his decisions fall within the “zone of reasonableness.”

 

Id., at 375; see also HCJ 619/78 “Al Tal’ia” Weekly v. Defense Minister, at 512; Jam’iat Ascan, at 809; Barake, at 16.

 

47.  The petition before us is exceptional in that opinions were submitted by the Council for Peace and Security. These opinions deal with the military aspect of the separation fence. They were given by experts in the military and security fields, whose expertise was also recognized by the commander of the area.  We stand, therefore, before contradictory military opinions regarding the military aspects of the route of the separation fence.  These opinions are based upon contradictory military views.  Thus, for example, it is the view of the military commander that the separation fence must be distanced from the houses of Jewish towns, in order to ensure a security zone which will allow pursuit after terrorists who have succeeded in passing the separation fence, and that topographically controlling territory must be included in the route of the fence.  In order to achieve these objectives, there is no escaping the need to build the separation fence proximate to the houses of the local inhabitants. In contrast, the view of military experts of the Council for Peace and Security is that the separation fence must be distanced from the houses of local inhabitants, since proximity to them endangers security. Topographically controlling territory can be held without including it in the route of the fence.  In this state of affairs, are we at liberty to adopt the opinion of the Council for Peace and Security? Our answer is negative. At the foundation of this approach is our long-held view that we must grant special weight to the military opinion of the official who is responsible for security. Vice-President M. Landau J. dealt with this point in a case where the Court stood before two expert opinions, that of the Major General serving as Coordinator of IDF Activity in the Territories and that of a reserve Major General. Thus wrote the Court:

 

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.

 

HCJ 258/79 Amira v. Defense Minister, 92.

 

Justice Vitkon wrote similarly in Duikat, in which the Court stood before a contrast between the expert opinion of the serving Chief of the General Staff regarding the security of the area, and the expert opinion of a former Chief of the General Staff.  The Court ruled, in that case, as follows:

 

In security issues, where the petitioner relies on the opinion of an expert in security affairs, and the respondent relies on the opinion of a person who is both an expert and also responsible for the security of the state, it natural that we will grant special weight to the opinion of the latter.

 

HCJ 390/79 Duikat v. Government of Israel.

 

Therefore, in our examination of the contrasting military considerations in this case, we give special weight to the fact that the commander of the area is responsible for security.  Having employed this approach, we are of the opinion – the details of which we shall explain below – that petitioners have not carried their burden, and have not convinced us that we should prefer the professional expert opinion of members of the Council for Peace and Security over the security stance of the commander of the area.  We are dealing with two military approaches.  Each of them has military advantages and disadvantages.  In this state of affairs, we must place the expert opinion of the military commander at the foundation of our decision.

 

The  Proportionality of the Route of the Separation Fence

 

48. The second question examines the proportionality of the route of the separation fence, as determined by the military commander. This question raises no problems in the military field; rather, it relates to the severity of the injury caused to the local inhabitants by the route decided upon by the military commander. In the framework of this question we are dealing not with military considerations, but rather with humanitarian considerations. The question is not the proportionality of different military considerations.  The question is the proportionality between the military consideration and the humanitarian consideration.  The question is not whether to prefer the military approach of the military commander or that of the experts of the Council for Peace and Security. The question is whether the route of the separation fence, according to the approach of the military commander, is proportionate. The standard for this question is not the subjective standard of the military commander. The question is not whether the military commander believed, in good faith, that the injury is proportionate.  The standard is objective.  The question is whether, by legal standards, the route of the separation fence passes the tests of proportionality.  This is a legal question, the expertise for which is held by the Court. I dealt with this issue in Physicians for Human Rights, stating:

 

Judicial review does not examine the wisdom of the decision to engage in military activity.  In exercising judicial review, we examine the legality of the military activity. Therefore, we assume that the military activity that took place in Rafah was necessary from a military standpoint.  The question before us is whether this military activity satisfies the national and international standards that determine the legality of that activity.  The fact that the activity is necessary on the military plane, does not mean that it is lawful on the legal plane.  Indeed, we do not substitute our discretion for that of the military commander’s, as far as it concerns military considerations.  That is his expertise.  We examine the results on the plane of the humanitarian law.  That is our expertise.

 

 

 

Id, paragraph 9.

 

From the General to the Specific

 

This oversight applies to the case before us. The military commander is the expert regarding the military quality of the separation fence route. We are experts regarding its humanitarian aspects. The military commander determines where, on hill and plain, the separation fence will be erected. That is his expertise. We examine whether this route's harm to the local residents is proportional. That is our expertise.

 

 

49.  The key question before us is whether the route of the separation fence is proportionate.  The question is:  is the injury caused to local inhabitants by the separation fence proportionate, or is it is possible to satisfy the central security considerations while establishing a fence route whose injury to the local inhabitants is lesser and, as such, proportionate?  The separation fence which is the subject of this petition is approximately forty kilometers long.  Its proportionality varies according to local conditions. We shall examine its proportionality according to the various orders that were issued for the construction of different parts of the fence.  We shall examine the legality of the orders along the route of the fence from west to east (See the appendix to this decision for a map of the region.) This route starts east of the town of Maccabim and the Beit Sira village. It continues south to the town of Mevo Choron, and from there continues east to Jerusalem.  The route of the fence continues to wind, and it divides between Israeli towns and Palestinian villages adjacent to it. It climbs Jebel Muktam in order to ensure Israeli control of it.  As such, it passes the villages of Beit Likia, Beit Anan, and Chirbet Abu A-Lahm. After that, it advances east, separating Ma’aleh HaChamisha and Har Adar from the villages of Katane, El Kabiba, and Bidu. The fence continues and circles the village of Beit Sourik, climbing northward until it reaches route 443, which is a major traffic route connecting Jerusalem to the center of the country. In its final part, it separates the villages Bidu, Beit Ajaza, and Beit Daku from Har Shmuel, New Giv’on, and Giv’at Ze’ev.

 

Order no. Tav/105/03

 

50.  This order concerns the route beginning east of the town of Maccabim and west of the village of Beit Sira, and ending northeast of the town of Mevo Choron. This segment was not the subject of substantial dispute by the parties.  Respondent informed us that the north tip of the route, which is subject to this order, as well as the southern tip, were changed (see map submitted to us by the parties, of March 31 2004). Thus, the injury to the cultivated lands proximate to it was reduced. Petitioners raised no arguments regarding the route itself, and the village of Beit Sira was not joined as a petitioner.  Members of the Council for Peace and Security did not mention this order in their affidavits. In light of all this, to the extent that it relates to this order, the petition is denied,.

 

Order Tav/104/03; Order Tav/103/03; Order Tav/84/03 (The Western Part of the Order)

 

51.  These orders apply to more than ten kilometers of the fence route. This segment of the route surrounds the high mountain range of Jebel Muktam.  This ridge topographically controls its immediate and general surroundings. It towers over route 443 which passes north of it, connecting Jerusalem to Modi’in. The route of the obstacle passes from southwest of the village of Beit Likia, southwest of the village of Beit Anan, and west of the village of Chirbet Abu A-Lahm.  Respondent explains that the objective of this route is to keep the mountain area under Israeli control.  This will ensure an advantage for the armed forces, who will topographically control the area of the fence, and it will decrease the capability of others to attack those traveling on route 443.

 

52. Petitioners painted a severe picture of how the fence route will damage the villages along it.  As far as the Beit Anan village (population: 5500) is concerned, 6000 dunams of village land will be affected by the fact that the obstacle passes over them. 7500 dunams of land will end up beyond the fence (6000 dunams of which are cultivated land). Ninety percent of the cultivated land seized and affected is planted with olive and fruit trees.  18,000 trees will be uprooted.  70,000 trees will be separated from their owners.  The livelihood of hundreds of families will be hurt. This damage is especially severe in light of the high unemployment rate in that area (approaching 75%).  As far as the Beit Likia village is concerned (population: 8000), 2100 dunams will be affected by the route of the obstacle.  Five thousand dunams will end up beyond the fence (3000 dunams of which are cultivated land).

 

53.  Respondents dispute this presentation of the facts.  They argue that the extent of damage is less than that described by petitioners.  As for the village of Beit Anan, 410 dunams (as opposed to 600) will be seized, and 1245 cultivated dunams will end up on the other side of the obstacle (as opposed to 6000).  Respondents further argue that 3500 trees will be uprooted (as opposed to 18,000).  However, even according to respondent, the damage to the villages is great, despite certain changes which respondents made during the hearing of the petition in order to relieve the situation of the local inhabitants.

 

54.  Petitioners attached the affidavit of the Council for Peace and Security (signed by Major General (res.) D. Rothchild, Major General (res.) A. Adan (Bren), Commissioner (ret.) S. Giv’oli, and Colonel (res.) Y. Dvir), which relates to this segment. According to the affidavit, the seizure of Jebel Muktam does not fit the principles set out for the building of the fence.  Effective light weapon fire from Jebel Muktam upon route 443 or upon any Israeli town is not possible. Moving the obstacle three kilometers south, adjacent to the Green Line, will place it upon topographically controlling territory that is easy to defend.  They argue that not every controlling hill is necessary for the defense of the separation fence.  Jebel Muktam is one example of that.  Moreover, the current route will necessitate the construction and maintenance of agricultural gates, which will create superfluous and dangerous friction with the local population, embittered by the damage inflicted upon them.  Petitioners presented two alternate proposals for the route in this area.  One passes next to the border of the area of Judea and Samaria.  This route greatly reduces the damage to the villages of Beit Likia and Beit Anan.  The route of the other proposal passes near the Green Line, south of the route of the first proposal.  This route does not affect the lands of these villages or the lands of the village of Chirbet Abu A-Lahm. 

 

55.  Respondent stated, in his response to the affidavit of members of the Council for Peace and Security, that it was not his intention to change the route of the fence that goes through this area.  He claims that IDF forces’ control of Jebel Muktam is a matter of decisive military importance. It is not just another topographically controlling hill, but rather a mountain looking out over the entire area.  He reiterated his stance that the current route will decrease the possibility of attack on travelers on route 443, and that erecting the obstacle upon the mountain will prevent its taking by terrorists.  Respondent surveyed the relevant area, and came to the conclusion that the route proposed by petitioners is considerably topographically inferior, and will endanger the forces that will patrol along the fence.  In order to reduce the injury to the local inhabitants, the military commander decided that agricultural gates be built. One daytime gate will be built south of Beit Likia.  Another daytime gate will be built three kilometers from it (as the crow flies), north of Beit Anan.  Specific requests by farmers will be examined on their merits.  Owners of land seized will be compensated, and olive trees will be transferred rather than uprooted. The route has even taken into consideration buildings built illegally by Palestinian inhabitants in the area, since there was not enough time to take the legal steps necessary for their demolition.  We were further informed that it was decided, during the survey which took place onsite with the participation of petitioners’ counsel, to make a local correction in the route of the obstacle, adjacent to the village of Chirbet Abu A-Lahm, which will distance the obstacle from the houses of the village.  We originally prohibited (on February 29, 2004) works to erect the separation fence in the part of the route to which the abovementioned orders apply.  During the hearing (on March 31, 2004), we ordered the cancellation of the temporary injunction with respect to the segment between the Beit Chanan riverbed and the ascent to Jebel Muktam.

 

56. From a military standpoint, there is a dispute between experts regarding the route that will realize the security objective.  As we have noted, this places a heavy burden on petitioners, who ask that we prefer the opinion of the experts of the Council for Peace and Security over the approach of the military commander. The petitioners have not carried this burden.  We cannot – as those who are not experts in military affairs – determine whether military considerations justify laying the separation fence north of Jebel Muktam (as per the stance of the military commander) or whether there is no need for the separation fence to include it (as per  the stance of petitioners’ and the Council for Peace and Security).  Thus, we cannot take any position regarding whether the considerations of the military commander, who wishes to hold topographically controlling hills and thus prevent “flat-trajectory” fire, are correct, militarily speaking, or not. In this state of affairs, there is no justification for our interference in the route of the separation fence from a military perspective.

 

57. Is the injury to the local inhabitants by the separation fence in this segment, according to the route determined by respondent, proportionate?  Our answer to this question necessitates examination of the route’s proportionality, using the three subtests.  The first subtest examines whether there is a rational connection between the objective of the separation fence and its established route. Our answer is that such a rational connection exists. We are aware that the members of the Council for Peace and Security claim, in their expert opinion, that such a connection does not exist, and that the route proposed by them is the one that satisfies the “rational connection” test.  As we stated, we cannot accept this position.  By our very ruling that the route of the fence passes the test of military rationality, we have also held that it realizes the military objective of the separation fence.

 

58.  The second subtest examines whether it is possible to attain the security objectives of the separation fence in a way that causes less injury to the local inhabitants.  There is no doubt – and the issue is not even disputed – that the route suggested by the members of the Council for Peace and Security causes less injury to the local inhabitants than the injury caused by the route determined by the military commander.  The question is whether the former route satisfies the security objective of the security fence to the same extent as the route set out by the military commander.  We cannot answer this question in the affirmative. The position of the military commander is that the route of the separation fence, as proposed by members of the Council for Peace and Security, grants less security than his proposed route. By our very determination that we shall not intervene in that position, we have also determined that there is no alternate route that fulfills, to a similar extent, the security needs while causing lesser injury to the local inhabitants.  In this state of affairs, our conclusion is that the second subtest of proportionality, regarding the issue before us, is satisfied.

 

59.  The third subtest examines whether the injury caused to the local inhabitants by the construction of the separation fence stands in proper proportion to the security benefit from the the security fence in its chosen route. This is the proportionate means test (or proportionality “in the narrow sense”). Concerning this topic, Professor Y. Zamir wrote:

 

The third element is proportionality itself.  According to this element, it is insufficient that the administrative authority chose the proper and most moderate means for achieving the objective; it must also weigh the benefit reaped by the public against the damage that will be caused to the citizen by this means under the circumstances of the case at hand. It must ask itself if, under these circumstances, there is a proper proportion between the benefit to the public and the damage to the citizen.  The proportion between the benefit and the damage – and it is also possible to say the proportion between means and objective – must be proportionate.

 

Zamir, id., at 131.

 

This subtest weighs the costs against the benefits. See Stamka, at 776.  According to this subtest, a decision of an administrative authority must reach a reasonable balance between communal needs and the damage done to the individual. The objective of the examination is to determine whether the severity of the damage to the individual and the reasons brought to justify it stand in proper proportion to each other.  This judgment is made against the background of the general normative structure of the legal system, which recognizes human rights and the necessity of ensuring the provision of the needs and welfare of the local inhabitants, and which preserves “family honour and rights” (Regulation 46 of the Hague Regulations).  All these are protected in the framework of the humanitarian provisions of the Hague Regulations and the Geneva Convention.  The question before us is: does the severity of the injury to local inhabitants, by the construction of the separation fence along the route determined by the military commander, stand in reasonable (proper) proportion to the security benefit from the construction of the fence along that route?

 

60.  Our answer is that there relationship between the injury to the local inhabitants and the security benefit from the construction of the separation fence along the route, as determined by the military commander, is not proportionate. The route undermines the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. This approach is based on the fact that the route which the military commander established for the security fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law. Here are the facts:  more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood, and which are located on the other side of the separation fence. No attempt was made to seek out and provide them with substitute land, despite our oft repeated proposals on that matter.  The separation is not hermetic: the military commander announced that two gates will be constructed, from each of the two villages, to its lands, with a system of licensing.  This state of affairs injures the farmers severely, as access to their lands (early in the morning, in the afternoon, and in the evening), will be subject to restrictions inherent to a system of licensing.  Such a system will result in long lines for the passage of the farmers themselves; it will make the passage of vehicles (which themselves require licensing and examination) difficult, and will distance the farmer from his lands (since only two daytime gates are planned for the entire length of this segment of the route).  As a result, the life of the farmer will change completely in comparison to his previous life.  The route of the separation fence severely violates their right of property and their freedom of movement. Their livelihood is severely impaired.  The difficult reality of life from which they have suffered (due, for example, to high unemployment in that area) will only become more severe.

 

61.  These injuries are not proportionate.  They can be substantially decreased by an alternate route, either the route presented by the experts of the Council for Peace and Security, or another route set out by the military commander. Such an alternate route exists.  It is not a figment of the imagination.  It was presented before us.  It is based on military control of Jebel Muktam, without “pulling” the separation fence to that mountain.  Indeed, one must not forget that, even after the construction of the separation fence, the military commander will continue to control the area east of it.  In the opinion of the military commander – which we assume to be correct, as the basis of our review – he will provide less security in that area.  However, the security advantage reaped from the route as determined by the military commander, in comparison to the proposed route, does not stand in any reasonable proportion to the injury to the local inhabitants caused by this route.  Indeed, the real question in the “relative” examination of the third proportionality subtest is not the choice between constructing a separation fence which brings security but injures the local inhabitants, or not constructing a separation fence, and not injuring the local inhabitants.  The real question is whether the security benefit reaped by the acceptance of the military commander’s position (that the separation fence should surround Jebel Muktam) is proportionate to the additional injury resulting from his position (with the fence separating local inhabitants from their lands). Our answer to this question is that the military commander’s choice of the route of the separation fence is disproportionate.  The gap between the security provided by the military commander’s approach and the security provided by the alternate route is minute, as compared to the large difference between a fence that separates the local inhabitants from their lands, and a fence which does not separate the two (or which creates a separation which is smaller and possible to live with).  Indeed, we accept that security needs are likely to necessitate an injury to the lands of the local inhabitants and to their ability to use them. International humanitarian law on one hand, however, and the basic principles of Israeli administrative law on the other, require making every possible effort to ensure that injury will be proportionate. Where construction of the separation fence demands that inhabitants be separated from their lands, access to these lands must be ensured, in order to minimize the damage to the extent possible.

 

62.  We have reached the conclusion that the route of the separation fence, which separates the villages of Beit Likia and Beit Anan from the lands which provide the villagers with their livelihood, is not proportionate.  This determination affects order Tav/103/03, which applies directly to the territory of the mountain itself, and leads to its annulment.  This determination also affects order Tav/104/03 which applies to the route west of it, which turns in towards the village of Beit Likia, in order to reach the mountain.  The same goes for the western part of order Tav/84/03, which descends from the mountain in a southeasterly direction. The eastern part of the latter order was not a matter of significant dispute between the parties, but as a result of the annulment of the aforementioned orders, it should be examined anew.

 

Order no. Tav/107/30 (Until the Hill Northeast of Har Adar)

 

63.  This order applies to the part of the fence route which begins south of the village of Katane and ends up east of the town of Har Adar.  Its length is about four and one half kilometers.  It separates between Har Adar and the villages of Katane (population: approximately 1000), El Kabiba (population: 2000), Bidu (population: 7500) and Beit Sourik (population: 3500).  Petitioners argue that the route of this segment of the fence will cause direct injury to 300 dunams of the village of Katane.  5700 dunams of the lands of the village will end up on the other side of the fence (4000 of them cultivated lands).  They further argue that 200 dunams of the land of the village of El Kabiba will be directly injured by the fence passing through them.  2500 dunams will end up on the other side of the fence (of which 1500 dunams are cultivated land).  Indeed, then, the separation fence causes severe injury to the local inhabitants. The fence cuts the residents of the villages off from their lands, and makes their access to it – access upon which the livelihood of many depends – difficult. Study of the map attached by respondents (response of March 10 2004) reveals that along this part of the route, two gates will be built. One gate can only be used by pedestrian traffic. It is located at the western edge of this part of the route (south of the village of Katane). A second gate is a daytime gate located south of the hill which topographically controls the town of Har Adar from the northwest, and west of the village of Bidu.  Respondent argues that the gates will allow the passage of farmers to their lands.  Compensation  will be paid to those whose lands are seized. Thus a proper balance will be struck between security needs and the needs of the local population.

 

64.  After submission of the petition and examination of the arguments raised in it, respondents changed the route of the separation fence in this area. This part of the route, which passes north of Har Adar, will be closer to the security systems already existing in that town. Respondents stated that, as a result of this correction, the solution to security problems will be an inferior one, but they will reduce the injury to the local population and provide a reasonable level of security. Petitioners, however, claim that these changes are insufficient.  The stance of the Council for Peace and Security, as per its first affidavit (signed by Major General (res.) Avraham Adan (Bren), Commissioner (res.) Shaul Giv’oli and Colonel (res.) Yuval Dvir), is that the separation fence should be integrated into the existing fence of the town of Har Adar.  Moving the fence to a location adjacent to the village of Katane (west of Har Adar) will cause severe injury to the local inhabitants and will suffer all of the same aforementioned problems of a fence proximate to houses of Palestinians. Placing the fence side by side with the existing security systems west of Har Adar will not increase the danger of fire upon Har Adar. That is since it is already possible to fire upon it from the adjacent villages.  Moreover, the current route, which passes next to Palestinian buildings, will endanger the forces patrolling along it, and will increase the concerns regarding false alarms.

 

65.  The military commander argued, in response, that it is impossible to make a change in the route in the area of the village of Katane. From the operational standpoint, the proposal will allow terrorists free access all the way to the houses at the western edge of  Har Adar. Nor can a change be made in the route from the engineering standpoint, since the patrol road that must pass along the fence will be so steep that it will not allow movement of vehicles there. Regarding the part of the route which passes north of Har Adar, respondent agrees that it will be possible to integrate it with the existing defense perimeter of Har Adar (partially, in the area of the pumping facility of the town).  Respondents are not prepared to make any additional changes to the remainder of the route in this segment.  The military commander argues, in addition, that the proposal of the Council for Peace and Security regarding the part of the route which passes east of Har Adar cannot be accepted. That proposal would leave a hill located northeast of the town, which topographically controls it and the surroundings, outside of the defended area.  Nonetheless, he testified that, after meetings with petitioners and members of the Council for Peace and Security, it was decided that slight changes would be made in the segment which passes alongside the northeast hill. As a result, the obstacle will be distanced further from the road and from the homes of the local inhabitants in the area (see para. 60 of military commander’s affidavit of April 15 2004).  Respondent also stated that order of seizure Tav/37/04, which amends the route accordingly, has already been issued. In our decision (of March 31 2004) we held that respondents shall refrain from making irreversible changes in the segment north of Har Adar.

 

66.  From the military standpoint, there is a dispute between the military commander (who wishes to distance the separation fence from Har Adar) and the experts of the Council for Peace and Security (who wish to bring the fence closer to Har Adar). In this disagreement on military issues – and according to our approach, which gives great weight to the position of the military commander responsible for the security of the area – we accept the security stance of the military commander. Against this background, the question arises:  is this part of the route of the separation fence proportionate?

 

67.  Like the previous order we considered, this order before us also passes the two first subtests of proportionality (rational connection; the least injurious means).  The key question here concerns the third subtest (proportionality in the narrow sense).  Here too, as in the case of the previous order, the injury by the separation fence to the lives of more than 3000 farmers in the villages of Katane and El-Kabiba is severe.  The rights guaranteed them by the Hague Regulations and the Fourth Geneva Convention are violated. The delicate balance between the military commander’s obligation to provide security and his obligation to provide for the local inhabitants is breached. The fence separates between the inhabitants of Katane and El-Kabiba and their lands east and west of Har Adar, while instituting a licensing regime for passage from one side of the fence to the other. As a result, the farmer’s way of life is impinged upon most severely. The regime of licensing and gates, as set out by the military commander, does not solve this problem.  The difficulties we mentioned regarding the previous order apply here as well. As we have seen, it is possible to lessen this damage substantially if the route of the separation fence passing east and west of Har Adar is changed, reducing the area of agricultural lands lying beyond the fence. The security advantage (in comparison to the possible alternate route) which the military commander wishes to achieve is not proportionate to the severe injury to the farmers (according to the route proposed by the military commander).  On this issue, attempts to find an appropriate solution were made during the hearing of the petition. These attempts must continue, in order to find a route which will fulfill the demands of proportionality. As a result of such a route, it may be that there will be no escaping some level of injury to the inhabitants of Katane and El-Kabiba, which should be reduced to the extent possible. As such, since the parties must continue to discuss this issue, we have not seen fit to make a final order regarding Tav/107/03.

 

The Eastern Tip of Order no. Tav/107/03 and Order no. Tav/108/03

 

68.  This order applies to the five and a half kilometer long segment of the route of the obstacle which passes west and southeast of the villages of Beit Sourik (population: 3500) and Bidu (population: 7500).  A study of this part of the route, as published in the original order, reveals that the injury to these villages is great.  From petitioners’ data – which was not negated by respondents – it appears that 500 dunams of the lands of the village of Beit Sourik will be directly damaged by the positioning of the obstacle. 6000 additional dunams will remain beyond it  (5000 dunams of which are cultivated land), including three greenhouses. Ten thousand trees will be uprooted and the inhabitants of the villages will be cut off from 25,000 thousand olive trees, 25,000 fruit trees and 5400 fig trees, as will as from many other agricultural crops. These numbers do not capture the severity of the damage.  We must take into consideration the total consequences of the obstacle for the way of life in this area.  The original route as determined in the order leaves the village of Beit Sourik bordered tightly by the obstacle on its west, south, and east sides. This is a veritable chokehold, which will severely stifle daily life. The fate of the village of Bidu is not much better. The obstacle surrounds the village from the east and the south, and impinges upon lands west of it.  From a study of the map attached by the respondents (to their response of March 10, 2004) it appears that, on this segment of the route, one seasonal gate will be established south of the village of Beit Sourik.  In addition, a checkpoint will be positioned on the road leading eastward from Bidu.

 

69.  In addition to the parties’ arguments before us, a number of residents of the town of Mevasseret Zion, south of the village of Beit Sourik, asked to present their position. They pointed out the good neighborly relations between Israelis and Palestinians in the area and expressed concern that the route of the fence, which separates the Palestinian inhabitants from their lands, will put those relations to an end.  They argue that the Palestinians’ access to their lands will be subject to a series of hindrances and violations of their dignity, and that this access will even be prevented completely.  On the other hand, Mr. Efraim Halevi asked to present his position, which represents the opinion of other residents of the town of Mevasseret Tzion.  He argues that moving the route of the fence southward, such that it approaches Mevasseret Tzion, will endanger its residents.

 

70.  As with the previous orders, here too we take the route of the separation fence determined by the military commander as the basis of our examination. We do so, since we grant great weight to the stance of the official who is responsible for security.  The question which arises before us is: is the damage caused to the local inhabitants by this part of the separation fence route proportionate?  Here too, the first two subtests of the principle of proportionality are satisfied. Our doubt relates to the satisfaction of the third subtest.  On this issue, the fact is that the damage from the segment of the route before us is most severe. The military commander himself is aware of that.  During the hearing of the petition, a number of changes in the route were made in order to ease the situation of the local inhabitants.  He mentioned that these changes provide an inferior solution to security problems, but will allow the injury to the local inhabitants to be reduced, and will allow a reasonable level of security.  However, even after these changes, the injury is still very severe.  The rights of the local inhabitants are violated. Their way of life is completely undermined.  The obligations of the military commander, pursuant to the humanitarian law enshrined in the Hague Regulations and the Fourth Geneva Convention, are not being satisfied.

 

71.  The Council for Peace and Security proposed an alternate route, whose injury to the agricultural lands is much smaller. It is proposed that the separation fence be distanced both from the east of the village of Beit Sourik and from its west.  Thus, the damage to the agricultural lands will be substantially reduced.  We are convinced that the security advantage achieved by the route, as determined by the military commander, in comparison with the alternate route, is in no way proportionate to the additional injury to the lives of the local inhabitants caused by this order.  There is no escaping the conclusion that, for reasons of proportionality, this order before us must be annulled. The military commander must consider the issue again.  He must create an arrangement which will avoid this severe injury to the local inhabitants, even at the cost of a certain reduction of the security demands. The proposals of the Council for Peace and Security – whose expertise is recognized by the military commander – may be considered.  Other routes, of course, may be considered.  This is the military commander’s affair, subject to the condition that the location of the route free the village of Beit Sourik (and to a lesser extent, the village of Bidu) from the current chokehold and allow the inhabitants of the villages access to the majority of their agricultural lands.

 

Order no. Tav/109/103

 

72.  This order applies to the route of the separation fence east of the villages of Bidu, Beit Ajaza and Beit Daku.  Its length is approximately five kilometers. As we take notice of its southern tip, its central part, and its northern part, different parts of it raise different problems. The southern tip of the order directly continues from the route of order no. Tav/108/03, to the area passing west of the town of Har Shmuel. This part of the fence passes east of the village of Bidu, and it is the direct continuation of the part of the separation fence considered by us in the framework of order no. Tav/108/03.  The fate of this part of order no. Tav/109/03 is the same fate as that of order no. Tav/108/03.  As such, the separation fence will be moved eastward, so that the inhabitants of the village of Bidu will be able to continue the agricultural cultivation of the part of their lands east of this part of the fence.

 

73.  The central part of the separation fence in this order passes west of the town of Har Shmuel and east of the village of Bidu, until it reaches New Giv’on, which is east of it, and the village of Beit Ajaza which is west of it.  The separation fence separates these two towns.  The route causes injury to the agricultural lands of the village of Bidu and to the access to them.  The route also impinges upon the lands of the village of Beit Ajaza.  We were informed that 350 dunams of the lands of this village will be damaged by the construction of the obstacle.  2400 dunams of the lands of the village will be beyond it (2000 dunams of it cultivated land).  In addition, the route cuts off the access roads that connect the villages to the urban center of Ramallah and to East Jerusalem   In the affidavit of the Council for Peace and Security (of April 4 2004) it was mentioned that the current route will allow the local inhabitants to reach Ramallah only via a long and difficult road. Petitioners proposed that the route of the fence pass adjacent to the town of Har Shmuel, to the road connecting the Ramot neighborhood to Giv’at Ze’ev, and to the southern part of the town of New Giv’on.  Thus, free access to the agricultural lands in the area will be possible.  Petitioners also proposed pressing the route up against the western part of New Giv’on, and thus distancing it a bit from the village of Beit Ajaza.

 

74.  The route proposed by petitioners is unacceptable to respondent.  He argues that it does not take into account the palpable threat of weapons fire upon Israeli towns and upon the road connecting Ramot with Giv’at Ze’ev.  Neither does it consider the need to establish a security zone which will increase the preparation time available to the armed forces in the event of an infiltration.  Respondent argues that pushing the separation fence up against the Israeli towns will substantially endanger those towns.  The military commander is aware of this, and therefore testified before us that a gate will be established at that location in order to allow the inhabitants’ passage to their lands.  East of the village of Bidu, a permanent checkpoint will be established, which will be open 24 hours a day, 365 days a year, in order to allow the preservation of the existing fabric of life in the area and ease the access to the villages.  It was further decided to take steps which will improve the roads connecting the villages to one another, in order to allow the continued relations between these villages, and between them and Ramallah. In addition, respondent is examining the possibility of paving a road which will allow free and fast access from the villages to the direction of Ramallah. In his affidavit (of April 20 2004), respondent testified (paragraph 22 of the affidavit) that, until the completion of said road, he will not prevent passage of the inhabitants of the villages in this petition to the direction of Ramallah; rather, access toward the city will be allowed, according to the current arrangements.

 

75.  According to our approach, great weight must be given to the military stance of the commander of the area.  Petitioners did not carry their burden and did not convince us that we should prefer petitioners’ military stance (supported in part by the expert opinion of members of the Society for Peace and Security) over the stance of the commander of the area.  We assume, therefore, that the position of the commander of the area, as expressed in this part of order no. Tav/109/03, is correct, and it forms the basis for our examination.

 

76.  Is the damage caused to the local inhabitants by this part of the route of the separation fence proportionate?  Like the orders we considered up to this point, the question is: is the security advantage gained from the route, as determined by the commander of the area, compared to other possible alternate routes, proportionate to the additional injury to the local inhabitants caused by this route, compared to the alternate routes?  Here, as well, the picture we have already dealt with reappears. The route of the fence, as determined by the military commander, separates local inhabitants from their lands.  The proposed licensing regime cannot substantially solve the difficulties raised by this segment of the fence. All this constitutes a severe violation of the rights of the local inhabitants. The humanitarian provisions of the Hague Regulations and of the Fourth Geneva Convention are not satisfied. The delicate balance between the security of the area and the lives of the local inhabitants, for which the commander of the area is responsible, is upset. There is no escaping, therefore, the annulment of the order, to the extent that it applies to the central part of the fence.  The military commander must consider alternatives which, even if they result in a lower level of security, will cause a substantial (even if not complete) reduction of the damage to the lives of the local inhabitants.

 

77.  We shall now turn to the northern part of order no. Tav/109/03.  The route of the gate at this part begins in the territory separating New Giv’on from the village of Beit Ajaza.  It continues northwest to the eastern part of the village of Beit Daku.  In our decision (of March 31 2004), we determined that respondents shall refrain from making irreversible changes in the segment between Beit Tira and North Beit Daku.  There is no dispute between the parties regarding the part of the fence which separates New Giv’on and Beit Ajaza.  This part of the fence is legal.  The dispute arises regarding the part of the separation fence which lies beyond it.

 

78.  Petitioners argue that this part of the route of the separation fence severely injures the local inhabitants of the village of Beit Daku.  The data in their arguments show that 300 dunams of village lands will be directly damaged by the passage of the obstacle through them. 4000 dunams will remain beyond the obstacle (2500 of them cultivated). The affidavit submitted by the Council for Peace and Security states that the route of the obstacle should be moved a few hundred meters northeast of the planned location, in order to reduce the effect on local inhabitants.  Petitioners presented two alternate routes for the obstacle in this segment.  One route passes through the area intended for expansion of the town of Giv’at Ze’ev known by the nickname of “The Gazelles’ Basin,” where a new neighborhood is already being built.  A second alternate route draws the obstacle closer to its present route, northeast of it.

 

79.  Respondent objects to the route proposed by petitioners and by the Society for Peace and Security.  He explains that there is great importance to the control of a high hill located east of the village of Beit Daku. This hill topographically controls New Giv’on, Giv’at Ze’ev and “The Gazelles’ Basin.” The route of the fence was planned such that it would not obstruct the road connecting the villages of Beit Daku and Beit Ajaza.  In addition, the route passes over ridges of the hill which are of relatively moderate gradient, whereas the other ridges which descend from it are steep. In respondent’s opinion, moving the fence northwest of its current route will allow terrorist activity from the high hill, and thus endanger the Israeli towns and the army forces patrolling along the obstacle. In addition, the fact that the route proposed by petitioners is steeper raises complex engineering problems, whose solution will demand multiple bends in the route that will seriously damage the crops located at the foot of the hill.

 

80.  As with other segments of the separation fence, here too we begin from the assumption that the military-security considerations of the military commander are reasonable, and that there is no justification for our intervention.  The question before us, therefore, is: is the route of the separation fence, which actualizes these considerations, proportionate?  The main difficulty is the severe injury to the local inhabitants of Beit Daku. The fence separates them from considerable parts (4000 dunams, 2500 of which are cultivated) of their lands. Thus, a disproportionate injury is caused to the lives of the people in this location.  We accept – due to the military character of the consideration – that the high hill east of the village of Daku must be under IDF control.  We also accept that “The Gazelles’ Basin” is a part of Giv’at Ze’ev and needs defense just like the rest of that town.  Despite all that, we are of the opinion that the military commander must map out an alternate arrangement – one that will both satisfy the majority of the security considerations and also mitigate, to the extent possible, the separation of the local inhabitants of the village of Daku from their agricultural lands.  Such alternate routes were presented before us. We shall not take any stand whatsoever regarding a particular alternate route. The military commander must determine an alternative which will, provide a fitting, if not ideal, solution for the security considerations, and also allow proportionate access of Beit Daku villagers to their lands.

 

Order no. Tav/110/03

 

81.  This order continues the route of the separation fence northwest of Beit Daku.  This part starts out adjacent to the east part of the village of A-Tira, and ends up at route 443, east of Beit Horon.  The village of A-Tira is not a party to the petition before us, and we will not deal with its inhabitants. As far as it affects the lands of Beit Daku, this order must go the way of Tav/109/03, which we have already discussed.

 

Overview of the Proportionality of the Injury Caused by the Orders

 

82.  Having completed the examination of the proportionality of each order separately, it is appropriate that we lift our gaze and look out over the proportionality of the entire route of the part of the separation fence which is the subject of this petition. The length of the part of the separation fence to which these orders apply is   approximately forty kilometers. It causes injury to the lives of 35,000 local inhabitants. 4000 dunams of their lands are taken up by the route of the fence itself, and thousands of olive trees growing along the route itself are uprooted.  The fence separates the eight villages in which the local inhabitants live from more than 30,000 dunams of their lands. The great majority of these lands are cultivated, and they include tens of thousands of olive trees, fruit trees and other agricultural crops. The licensing regime which the military commander wishes to establish cannot prevent or substantially decrease the extent of the severe injury to the local farmers.  Access to the lands depends upon the possibility of crossing the gates, which are very distant from each other and not always open. Security checks, which are likely to prevent the passage of vehicles and which will naturally cause long lines and many hours of waiting, will be performed at the gates. These do not go hand in hand with the farmer’s ability to work his land. There will inevitably be areas where the security fence will have to separate the local inhabitants from their lands. In these areas, the commander should allow passage which will reduce, to the extent possible, the injury to the farmers.

 

83.  During the hearings, we asked respondent whether it would be possible to compensate petitioners by offering them other lands in exchange for the lands that were taken to build the fence and the lands that they will be separated from. We did not receive a satisfactory answer. This petition concerns farmers that make their living from the land. Taking petitioners’ lands obligates the respondent, under the circumstances, to attempt to find other lands in exchange for the lands taken from the petitioners. Monetary compensation may only be offered  if there are no substitute lands.

 

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

 

85.  The task of the military commander is not easy.  He must delicately balance between security needs and the needs of the local inhabitants. We were impressed by the sincere desire of the military commander to find this balance, and his willingness to change the original plan in order to reach a more proportionate solution.  We found no stubbornness on his part. Despite all this, we are of the opinion that the balance determined by the military commander is not proportionate.  There is no escaping, therefore, a renewed examination of the route of the fence, according to the standards of proportionality that we have set out.

 

Epilogue

 

86. Our task is difficult.  We are members of Israeli society.  Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terror.  We are aware of the killing and destruction wrought by the terror against the state and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror. We are aware that in the short term, this judgment will not make the state’s struggle against those rising up against it easier. But we are judges. When we sit in judgment, we are subject to judgment.  We act according to our best conscience and understanding.  Regarding the state’s struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit.  There is no security without law. Satisfying the provisions of the law is an aspect of national security. I discussed this point in HCJ 5100/94 The Public Committee against Torture in Israel v. The Government of Israel, at 845:

 

We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy—she does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome  her difficulties.

 

That goes for this case as well.  Only a separation fence built on a base of law will  grant security to the state and its citizens. Only a separation route based on the path of law, will lead the state to the security so yearned for.

 

The result is that we reject the petition against order no. Tav/105/03. We accept the petition against orders Tav/104/03, Tav/103/03, Tav/84/03 (western part), Tav/107/03, Tav/108/03, Tav/109/03, and Tav/110/03 (to the extent that it applies to the lands of Beit Daku), meaning that these orders are nullified, since their injury to the local inhabitants is disproportionate.

 

Respondents will pay 20,000 NIS in petitioners’ costs.

 

 

Vice President E. Mazza

I concur.

 

Justice M. Cheshin

I concur.

 

Held, as stated in the opinion of President A. Barak.

June 30, 2004

 

 

Justice T. Strasberg-Cohen

Facts

1.  On October 31, 1990, appellant was shot and injured while driving through the streets of Gaza City in a car insured by respondent no. 1, an Israeli insurance company. Appellant was taken to Shifa Hospital in Gaza.  He was then moved to Soroka Hospital in Be’er Sheva, where he remained hospitalized for close to two months. Approximately seven years later, on October 12, 1997, appellant submitted a personal injury claim to the Tel Aviv/Jaffa District Court under the Road Accident Victims (Compensation) (Gaza Strip) (Number 544) Order-1976 [hereinafter Compensation Order].  The court summarily dismissed the claim as being barred by the statute of limitations.

Judgment of the District Court

2.  The district court ruled that, since the accident occurred in Gaza, the Compensation Order applied.  The Compensation Order regulates road accidents claims in a manner similar to the Road Accident Victims (Compensation) Law-1975 [hereinafter the Compensation Law]. However, at the same time, the Compensation Order applies several sections from the Civil Wrongs Ordinance-1944 [hereinafter the Mandatory Ordinance], including the two year statute of limitations provided for in section 68(a) of the latter.  The Court ruled that this two year prescriptive period should be applied, since section 27 of the Prescription Law-1958 provides that the latter would not affect any period of prescription fixed in any “other law.” The Court saw the Compensation Order as an “other law” which provides for a particular prescriptive period. Thus, the court held that the Compensation Law does not apply despite the fact that the claim was submitted in Israel.  As such, the court dismissed the claim.  

Arguments

3.    Appellant claims that the Compensation Order is not a “law,” as defined by the Interpretation Ordinance (New Version) or the Interpretation Law-1981, and is not an “other law” as defined by section 27 of the Prescription Law.  As such, section 27 should not apply, and the Mandatory Ordinance should not determine the prescription period.  Appellant further asserts that the prescriptive period should be determined in accordance with Israeli law, which provides for a seven-year statute of limitations.  Appellant also claims that under the Oslo Accords, and also due to the practice of the respondents, compensation claims under the Compensation Order may only be submitted in Israeli courts. As such, appellant claims, Israeli law should be applied. In Israel, the Mandatory Ordinance has been replaced by the Civil Wrongs Ordinance (New Version), and the prescription period in section 68(a) of the Mandatory Ordinance has been modified by section 89 of the Civil Wrongs Ordinance. As such, courts in Israel determine the prescription period according to section 89 of the Civil Wrongs Ordinance. 

In the alternative, appellant asserts that his injuries constitute “continuing damages.”  Under section 68(b) of the Mandatory Ordinance, where there are “continuing damages,” the prescription period begins running only after the damages cease.

4.  Respondents, for their part, agree with the judgment of the district court. They assert that it should not be possible, by shifting the venue of the claim, to revive a claim which has become time-barred in the locations where the accident occurred. They assert that the Compensation Order creates the appellant’s right to compensation, and the Order also limits that right.  The Order provides for a two-year statute of limitations. Moreover, as the claim was submitted in Israel, the Prescription Law cannot be applied.  The Compensation Law is territorial and applies only to accidents which occurred within the State of Israel.  Local law applies to an accident which occurred in Gaza, and that local law is the Compensation Ordinance.  Respondents assert that this is a correct interpretation of the law, including the language of the Motor Vehicle Insurance Ordinance (New Version)-1970 and the relevant caselaw.  Respondents claim that the fact that the Israeli courts have applied “local law” does not mean that the Israeli prescription period should be applied. This is because the Prescription Law is a general law which is overridden by the specific law of the Compensation Order. It is also the case under section 27 of the Prescription Law, since the Compensation Order is a “law,” as defined by the Interpretation Ordinance, and should be seen as an “other law” which section 27 of the Prescription Law refers to. 

Respondents also claim that if the Compensation Order is not “Israeli law”—but rather “foreign law”—its statute of limitations should be construed as a substantive—not procedural—law which, under private international law, apply in an Israeli forum.  This is a basic legal approach in common law countries. Appellants also complain of the growing phenomenon where compensation claims concerning accidents which occurred in Judea, Samaria or Gaza [hereinafter the Area], and which involved residents of the Area, are submitted to the courts in Israel in an attempt to use the Israeli statute of limitations. Due to the security situation in the Area, this prevents the proper investigation of the relevant facts. Thus, respondents assert, as a matter of appropriate policy, the prescription period set in Israeli law should not be applied. 

The appeal here focuses on the prescription of a personal injury claim submitted in Israel by a party injured in a road accident which occurred in the Area, where the car was insured by an Israeli company.

The Statute of Limitations

5.   In 1976, approximately one year following legislation of the Compensation Law, the military commander issued orders regarding compensation for victims of road accidents—Order no. 544 in Gaza and Order no. 677 in Judea and Samaria.  Like the Israeli Compensation Law, these orders established no-fault causes of action for victims of road accidents.  They also established a statutory fund for the compensation of the victims of road accidents. The Compensation Order includes comprehensive regulations, which are essentially identical to the regulations of the Compensation Law and, in certain matters, refers to the Mandatory Ordinance.  In one case, the orders refer to section 68 of the Ordinance, which deals with the statute of limitations:

68. No action shall be brought for any civil wrong unless such action be commenced –
    1. within two years next after the act, neglect or default of which complaint is made, or
    2. where the civil wrong causes fresh damage continuing from day to day, within two years next after the ceasing thereof…

The period of prescription in claims regarding personal injury caused by a road accident is, under section 68 of the Mandatory Ordinance, two years.  The period of prescription in Israel, in contrast, under section 5 of the Prescription law, is seven years.  Which law applies to the case at hand: the two-year prescription period of the Mandatory Ordinance or the seven-year prescription period of the Israeli Prescription Law?  Before examining this question, I will devote some space to the normative status of the Compensation Order and to the source of the authority of the military governor who issued the order. 

Status of the Military Governor in the Area

6.     The status and authority of the Israeli military governor of an area under military control are derived, first and foremost, from customary international law.  See G. von Glahn, The Occupation of Enemy Territory 27 (1957); 2 L. Oppenheim, International Law 432-34 (7th ed.). Article 43 of the Hague Convention Regarding the Laws and Customs of War on Land-1907 [hereinafter Hague Convention] grants authority to the military governor and even obligates him to act to “restore” and “ensure,” as far as possible, “public order and the safety” of the residents of the area.  See HCJ 302/72 Hilu v. Israeli Government IsrSC 27(2) 169; HCJ 606/78 Saliman Tofif Oyev v. Minister of Defence IsrSC 33(2) 112; HCJ 390/79 Doykat v. Israeli Governement IsrSC 34(1) 1; HCJ 69/81 Abu Atya v. Commander of the Region of Judea and Samaria IsrSC 37(2) 197, 309; HCJ 393/82  Jamit Askhan Almaalmon Altaonya Almahduda Almaolya v.  IDF Commander in the Region of Judea and Samaria IsrSC 37(4) 785; HCJ Tha v. Minister of Defence IsrSC 45(2) 45.  On the authority of this obligation the governor acts to regulate the lifestyle and welfare of the residents of the area.  See von Glaht at 436-37; Oppenheim, at 33-34. 

There is an additional normative source of authority, which stems from the fact that the military governor of the Area is an Israeli government authority.  This stems from the Proclamation in the Matter of Law and Government (Judea and Samaria) (Number 2), promulgated on June 7, 1967, which grants legislative and administrative authority regarding the Area to the IDF commander in the Area.  It provides that such authority shall be exercised by the commander, or by whoever acts on his behalf. See section 3(a) of the Proclamation. An examination of the legislative activities of the governor demonstrates that they accord with government policy and are often influenced by Israeli statutes, at times even identical to them. Professor A. Rubenstien states:

The regional commanders are military officers who answer to the Chief of Staff and the Minister of Defense. The person responsible for legislation is the Coordinator of the Activities, who is subject to the Minister of Defense.  Legislative actions or orders must be approved by the civil government system, and often the initiative itself comes from the Coordinator of Activities or the Minister of Defense.  Occasionally, the initiative, or the approval, is given by the government itself. In effect, the regional commanders are the executive arm of governmental policy.  Furthermore, the various “headquarter officers” stationed at regional headquarters, and who represent the various government ministries, are the official extensions of the government ministries. 

See A. Rubenstien, The Shifting Status of the Administered Territories, 11 Iyunei Mishpat, 439, 451-52. In another context, Justice I. Zamir stated:

The Foreign Minister, responsible for foreign policy, speaks in the name of the state… The IDF commander in the region of Judea and Samaria, who also acts on behalf of the government, speaks in the name of the state in all matters regarding the territory in that area.  Both voices are voices of the state.

HCJ 2717/96 Wapah Ali v. Minister of Defence IsrSC 50(1) 848, 855. 

7.     Thus, the normative source of the authority of the military governor in the Area is twofold—it stems from customary international law as well as from Israeli law, in that the governor acts as the arm of the Israeli government.  In this regard, Professor I. Dinstien writes:

The authority of the legislative Jordanian authority has been suspended, and the Israeli military commander acts as a substitute for it, subject to the limits placed upon him by international law. He possesses legislative authority for the West Bank.  However, from the perspective of Israeli constitutional law, the military commander continues to be a part of the executive branch, and his actions are subject to the judicial review of the Supreme Court sitting as the High Court of Justice, just like the actions of the Chief of Staff and the Minister of Defense, who are appointed over him…. In my opinion, the legal status of the legislative acts of the military commander, from the point of view of the Supreme Court of Israel, does not differ from the legal status of any administrative regulations promulgated by the executive branch. In both situations, the High Court of Justice may embellish upon it… It can be appreciated that the twofold nature of the military commander as both supreme legislator, from the perspective of the territories, and as an executive authority subject to rules and regulations, from an Israeli perspective, raises difficulties of both practical and theoretical natures.

I. Dinstien, Judicial Review Over the Activities of the Military Government in the Administered Territories, 3 Iyunei Mishpat 330, 331-32 (1973). It seems that the above paragraph, which concerned judicial review of the actions of the military commander, also applies to questions of private law.

This Court, in a number of decisions, has addressed the duality which characterizes the status of the military governor. We have held that this duality requires the governor’s orders to conform to the requirements of both international and Israeli law.  See HCJ 302/72 Id.; HCJ 606/78 Id.; HCJ 390/79 Id.; HCJ 60/81 Id., at 230-232; HCJ 393/82 Id..

8.   How does the normative duality of the governor affect the status of the orders he issues?  The cases I have cited, in which the Court implemented a dual test for the examination of the governor’s orders, concerned administrative petitions which examined the actions and activities of the governor. This is not the case here, where we are being asked to determine the normative status of the governor’s orders in a civil proceeding before an Israeli court.  In such a situation, should we consider the governor’s orders as “foreign law” or “Israeli law”?  The answer to this question will affect the prescriptive period which applies to a right created by the Compensation Order, the Mandatory Ordinance or the Israeli Prescription Law.  If we conceive of the governor’s order as “foreign law,” the question will be examined in light of the principles of private international law which apply to the implementation of foreign law in a local forum.  On the other hand, if we conceive of the governor’s orders as Israeli law, we must refer to section 27 of the Prescription Law which states that it will not apply where the matter is specifically regulated by another law.  I will discuss each of these possibilities.

The Order as Foreign Law—Private International Law

 9.    The relationship between Israel and the Area is not a relationship between two independent sovereigns.  There is the sovereign country of Israel, on the one hand, and administered territory, on the other.   This Court, in dealing with the orders of the military governor has presumed them to be “foreign law.”  See CrimA 831/80 Tzoba v. State of Israel IsrSC 31(2) 169; CA 300/84 Abu Atya v. Arbatisi IsrSC 39(1) 365; C.App. 4716/93 Nablus Arab Insurance Co. v. Abed Zrikat IsrSC 48(3) 265; Crim.A. 8019/96 Amir v. State of Israel IsrSC 53(4) 459, 477.  For the sake of argument, under the assumption that the governor’s orders are foreign law, choice of law in the matter of prescription is determined in accordance with the rules of private international law, to which I now turn.

    When a matter which involves foreign law comes before a local forum, the rules of international law provide that procedural rules shall be in accordance with the law of the forum, while substantive rules shall be in accordance with foreign law. In Israel, questions of prescription are procedural issues.  As such, it would seem that the laws of the forum should be used.  Such is not the case, however, where foreign law creates a comprehensive system of regulation which includes provisions that regulate the realization of those substantive rights.  Where the legislation grants substantive rights and includes provisions which limit their realization—even procedural provisions—the system of regulation should be applied in its entirety. In such circumstances, the procedural provisions should be construed as inseparable from the substantive provisions, such that the procedural provisions become an integral part of the foreign substantive law.  Even if one finds that the provisions remain procedural despite their being part of the general substantive system of regulation, a plaintiff who desires to rest his claim upon foreign law should not be allowed to select part of those regulations while ignoring others.  He cannot choose those provisions which are beneficial to him, while ignoring those which are to his detriment.  Such a result is dictated by both common sense and proper legal policy.  This is the case here: where foreign law creates a cause of action for the realization of substantive rights and simultaneously sets out a specific limitations period for their realization, the local forum’s procedural rules of prescription will not apply.

10.  The proposal for the Choice of Law Act-1987, written by Professor A. Levontin, is a clear expression of this approach.  This proposal was not legislated.  However, there is no reason not to adopt its approach and apply it in the appropriate contexts, through judicial interpretation.  Section 50 of the proposal, the section relevant to the matter at hand, provides:

(7) In examining a right granted by foreign law, and in realizing such a right in Israel, the prescription provisions of the law that set out the right should be taken into account.  Where foreign law provides for a specific prescription period for the enforcement of a particular right, it is presumed that the foreign law intended that this specific period should apply even when the proceedings regarding that right occur outside the country of that law, including Israel.

Where foreign law provides a general procedural period of prescription, it is presumed that the foreign law only intended that period to be binding in proceedings occurring within that country. 

The explanatory notes of the proposed provision state:

Where foreign procedural prescription has been attached to a particular right, and only to that right, it should be assumed that something inherent in the nature of that right led the foreign legislator to specifying a period of prescription for it.  In such a case “it is presumed that the foreign law intended that it should apply even when the proceedings regarding that right are taking place outside of the country of that law, and in Israel.

Explanatory Notes to the Choice of Law Act, Ministry of Justice Publishing-1987, p.91.

The approach I set out above is apparent in the proposed law and the explanatory notes.  According to this approach, a prescription period which is attached to a particular right shall be applied in every state in which the realization of the substantive right is requested, even where the prescription provision is, at the outset, procedural.  This approach is not unique to Israel.  It has been adopted in the common law countries, whether through legislation or through caselaw.

Comparative Law

11.  The federal structure of the United States, which is comprised of autonomous states, has provided rich ground for the discussion of choice of law questions. Over the years, both legislative rules and caselaw have developed to deal with conflicts between the laws of the states, especially with regard to the issue of prescription.  The problem was a result of the traditional approach, which perceived statutes of limitations as procedural.  This encouraged “forum shopping.”  In order to prevent this phenomenon, two main rules were formulated.  The first, a product of case-law, relates to statutes of limitations of a sister-state as foreign substantive law. This rule provides that when a statute creates any sort of obligation and limits that obligation by a particular period of prescription, the court will perceive the prescription period as accompanying that obligation in any court in which the obligation is claimed, even where prescription is procedural.  In this regard Justice Holmes stated in Davis v. Mills, 194 U.S. 451, 454 (1904):

[C]ourts have been willing to treat limitation of time as standing like other limitations and cutting down the defendant’s liability whenever he is sued.  The common case is where a statue creates a new liability and in the same section or in a same act limits the time within which it can be enforced, whether using words of condition or not…. It is merely a ground for saying that the limitation goes to the right created and accompanies the obligation everywhere.

The second rule is statutory, and involves the adoption of “borrowing statues.” The foreign law is borrowed and drawn into local law.  In this way, the prescription period of the state of the substantive law is applied by the forum handling the claim.  E. F. Scholes and P. Hay explain:

As noted, the traditional (procedural) characterization of the Statue of Limitation may encourage forum-shopping.  Two exceptions are designed to alleviate this problem.  The first exception is a judicial creation: when the foreign limitation is intended to extinguish the right and not only to bar the remedy, it will be considered to be “substantive”…  The courts invariability limit the substantive characterization to limitations of rights created by statute.  The limitation is considered to be “built-in”… The second exception to the traditional rule… It takes the form of “borrowing statutes enacted by most jurisdictions”.  The typical “borrowing statute” provides that the cause of action will be barred in the forum if it is barred where it arose, accrued or originated.

E. F. Scholes & P. Hay, Conflict of Laws 60-62 (2nd 1992). (For additional judgments dealing with the case-law rule see Scholes & Hay, 60, nn. 2-4. For additional judgments regarding the system of “borrowing statutes” see Heavner v. Uniroyal, 305 A.2d 412 (N.J. YEAR?); Henry v. Richardson-Merrell., 508 F.2d 28, 32 (3d Cir. 1973); Allen v. Volkswagen of America, 555 F. 2d 361 (FORUM 1977).

12.  Thus, in American Law, the traditional common law approach, which provided that the law of the forum would apply with regard to statutes of limitation, was abandoned.  Instead, it was determined that foreign statute of limitations would apply.  A similar approach may be found in Scottish and Australian caselaw.  See Dicey & Morris, The Conflict of Laws 185 (12th ed. 1992).  England has also abandoned the traditional common law approach.  After years of criticism of the traditional rule, a committee was established to examine the application of foreign law in English courts.  In 1984 the Foreign Limitations Periods Act was legislated. This law regulated the application of prescription in a conflict of laws situation.  It provided that, in dealing with a claim under foreign substantive law, the foreign period of prescription would be applied.  The English prescription period would only apply in cases where English substantive law applied:

The Act was based on the recommendations of the Law Commission.  It adopts the general principle, subject to an exception based on public policy, that the limitation rules of the Lex Causa are to be applied in England. English limitations rules are not to be applied unless English law is the Lex Causa or one of two Leges Causae governing the matter.

Dicey & Morris, 186-87. See also J. D. McClean, Morris: The Conflict of Laws 386-87 (4th ed. 1993); Cheshire  North,  Private International Law 79-81 (12th ed. 1992).

To conclude this section, I find the approach articulated above to be acceptable. I am of the opinion that, where Israeli courts are dealing with a matter involving foreign law, and the applicable foreign substantive law provides for a specific period of prescription, the prescription period should be construed as a substantive provision. Alternatively, the prescriptive period should be construed as an integral part of the foreign law. This suffices to determine that, in so much as the Compensation Order is foreign law, the appellant’s claim has become time-barred, and should be dismissed.

The Order as “Law” or “Other Law”

 13.   I shall now turn to examine the other approach before us, which perceives the military governor as an Israeli authority. According to this perspective, the order has been promulgated by an Israeli authority. As such, the issue of prescription, as well as the Compensation Order itself, should be examined as Israeli law, and the issue would be governed by the Prescription Law.  Section 27 of the Prescription Law provides that it does not affect a prescription period that is provided for in another law:

 27. This law shall not, unless otherwise expressly therein provided, affect any period of prescription fixed for a particular matter in any other law…

If the Compensation Order is an “other law,” which provides a distinct prescription period, that period will apply. On the other hand, if the Compensation Order is not an “other law,” the prescription period provided in section 5 of the Prescription Law will apply.  More specifically, the “other law” would be the Mandatory Ordinance which the Compensation Order refers to.

 14.              The Prescription Law does not define the term “other law” in section 27, and there is no caselaw on the matter.  In the cases regarding section 27 which have come before Court, all of the relevant legislation has been Israeli legislation. See, e.g., CA 419/71 Menorah Re-Insurance v. Nomikus IsrSC 26(2) 527; CA 33/72 Fromin & Sons  v. Director of Customs and Excise Taxes IsrSC 28(2) 459; AD 36/84 R. Tychner v.Air France French Airways IsrSC 41(1) 589. This is not the case here, where the position of the possible “other law” is characterized by the dual status of the issuer of the order. 

In interpreting the term “other law,” we turn to the Interpretation Ordinance. This is because the Interpretation Law does not affect the definitions contained section 1 of the Interpretations Ordinance regarding statutes and administrative orders which were enacted before the Interpretation Law came into effect.  For such matters, the Interpretation Ordinance governs. The Compensation Order and the Prescription Law were enacted prior to the Interpretation Law.  Therefore, the relevant statute is the Interpretation Ordinance, which contains the following definition of a “law”:

“law”—any law or regulation, whether passed before the commencement of this Ordinance, or after it;

“regulation”—any regulation, rule, bylaw, proclamation, order, direction, notification, notice or other document, issued by any authority in the State of Israel or in Israel.

Can the Compensation Order, which was issued in the Area, be considered an “order” issued by “any authority” in “Israel”, which is included in the definition of a “regulation” that is “law”?  The answer to this question is not simple.  We must examine the essence of the order, as well as its connection to Israeli law.  As stated, the normative source of the governor’s orders, including the Compensation Order, is Israeli. This is a result of the military governor’s position as an organ of the Israeli government. Regarding the status of the governor as part of the executive branch, and the derivative status of his legislation as secondary legislation of the executive branch, see supra para. 7.

7.    With regard to the status of the legislator in the Area as an extension of the executive branch of the government, Professor Rubenstein writes:

Anyone who deals with law in the Area immediately notices the vast disparity between the reality and the legal fictions which disguise it.  One obvious legal fiction is that the military commander is the legislator for the Area….. In fact, the regional commanders are actually the executive arm of government policy….For all practical purposes, they are actually an extension of the government.

Rubenstien, at 452. In the same spirit, Justice Kedmi is of the opinion that, with regard to judicial notice, defense legislation in the Area has the same status as domestic Israeli law:

With regard to judicial notice, defense legislation in the Area is subject to the same rules as Israeli legislation.  The “legislator” in the Area is the long arm of the Israeli executive branch…. Considering the dual status of the legislator in the Area—Israeli, on the one hand, and local, on the other—our courts may regard defense legislation as if it were internal secondary legislation which applies only in the Area.

Crim.A. 8019/96 Amir, Id.

15.  The core of the Compensation Order is identical to the Compensation Law.  This Court construes the Compensation Order with an eye to its clear and strong connection to Israeli law.  The Deputy President, Justice S. Levin, has stated that the normative source of the Compensation Order is Israeli, and that the order draws its principles from the Israeli Compensation Law.  He states:

The issue of liability in a road accident, including the question of a definition of a “road accident,” is regulated in the Area by the orders of the military governor, in accordance with the principles of absolute liability and appropriation of cause, while the normative source of the legislation is Israeli, through the military governor.

C.App. 3003/96 The Arab Insurance Company Inc. v. Amro 55 Dinim Elyon 926. See also C.App. 4716/93 Shechem Arab Insurance Co. v.Zrikaat IsrSC 48(3) 265, 272-73 (Levin, D.P.)

The combined effect of the normative status of the governor and the strong connection of the Compensation Order to Israeli law, is that when this Court deals with such orders, it may conceive of them as Israeli law.  It seems to me that this order may be seen as an “order” included in the definition of a “regulation” which is “law,” as such is defined by the Interpretation Ordinance. Therefore, although from the international point of view the governor’s authorities are rooted in the principles of customary international law, when the governor’s orders come before an Israeli court, they may be seen as Israeli.

16. Even if the Compensation Order should not be construed as a “law,” as defined by the Interpretation Ordinance, it may perhaps be seen as an “other law,” as that term is used in section 27 of the Prescription Law.  The term “other law” is not defined by the law.  It is unclear whether the term “other law” only covers that which is “law,” as defined by the Interpretation Ordinance, or whether the term “other law” may be interpreted more broadly.  No one claims that the governor’s order is not law.  The dispute is with regard to the question of the normative nature of the order—whether it is foreign law or Israeli law.  The combined effect of the status of the governor as an Israeli government organ together with the clear connection between the Compensation Order and Israeli law, leads to the conclusion that the Compensation Order may be seen as included within the Interpretation Ordinance’s definition of the term “law” or the term “other law” as it is used in the Prescription Law. Consequently, the Compensation Order should be used in order to determine the applicable prescription period.  The prescription period should thus be set at two years, in accordance with the Mandatory Ordinance, to which the Compensation Order refers.

Continuing Damage

17. The appellant raised an alternative argument, which should be addressed briefly. Appellant argues that section 68(b) of the Mandatory Ordinance should be applied to his appeal. This section provides that where the civil wrong causes “continuing damage,” the prescription period shall not begin until the cessation of the damage.  Appellant claims that his damage has not ceased, that his wounds continue, that his medical condition is not final, and that “only the opinion of doctors appointed by the court” can assess “his medical condition.” This claim, however, which was argued only weakly before this Court and the district court, has not been grounded in a factual basis made in the statement of claim which would establish that we are dealing with “continuing damage.” The fact that the appellant was physically injured and that he has not yet healed does not toll the prescription period.  The claim that he has not yet healed, even if it is true, does not suffice to create “continuing damage.”  We have ruled several times that the prescription period commences with the occurrence of the injury and the initial damage, provided that it is not negligible. The prescriptive period does not begin to run from the time of the stabilization of the victim’s medical condition or with the submission of a doctor’s statement of opinion. We are aware that the claim is being summarily dismissed before the parties have had the opportunity to present evidence. However, the statement of claim submitted by the appellant does not offer a factual basis for his argument. 

18. In conclusion, I have found that the claim is barred by the applicable statute of limitations, and that the appeal should be dismissed.  This conclusion is the result of an analysis of both the alternatives presented for the question at hand, whether the order is seen as “foreign law,” or as “law” as defined by the Interpretation Ordinance, or as “other law” as defined by the Prescription Law.

Therefore, the appeal should be dismissed, since two years time has passed since the occurrence of the road accident in which the appellant was injured. Under the circumstances there is no order for costs.  

Justice E. Rivlin
I agree.

Justice A. Grunis
I agree.

Appeal dismissed, as per the opinion of Justice T. Strasberg-Cohen.

March 26 2003

Translated by: Leora Dahan

Edited by: Eli Greenbaum

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