State of Emergency and National Security

                                                                                                                                    EDA 1806/19

                                                                                                                                  EA 1866/19

                                                                                                                                  EA 1867/19

                                                                                                                                  EA 1876/19

 

In re:                                      Central Elections Committee for the 21^st Knesset

 

Plaintiffs in EDA 1806/19:               1.         MK Avigdor Lieberman

                                                            2.         MK Oded Forer

                                                            3.         Yisrael Beiteinu Faction

Appellants in EA 1866/19:               1.         Issawi Frej

                                                            2.         Ofer Kornfeld

                                                            3.         Atara Litvak

                                                            4.         Debbie Ben Ami

                                                            5.         Sonia Cohen

                                                            6.         Richard Peres

                                                            7.         Eran Yarak

                                                            8.         Gil Segal

                                                            9.         Shifrit Cohen Hayou Shavit

                                                            10.       Osama Saadi

                                                            11.       Wiam Shabita

                                                            12.       Yousouf Fadila

                                                            13.       Meretz Faction

                                                            14.       MK Stav Shaffir

15.       Reform Movement for Religion and State – Israel Movement for Progressive Judaism  

16.       Tag Meir Forum

Appellants in EA 1867/19:               1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Hoshaya Harari

                                                            4.         Yochai Revivo

                                                            5.         MK David Bitan

                                                            6.         Elidor Cohen

                                                            7.         Yaakov (Kobi) Matza

                                                            8.         Yigal Harari

                                                            9.         Yaakov Dekel

                                                            10.       Shimon Boker

                                                            11.       Yossi Shalom Haim Rozenboim

Appellant in EA 1876/19:                             Ra’am List

 

                                                                        v.

 

Respondents in EDA 1806/19:         1.         Dr. Ofer Cassif

                                                            2.         Attorney General

Respondents in EA 1866/19:            1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Central Elections Committee for the 21^st Knesset

                                                            4.         Attorney General

Respondents in EA 1867/19:            1.         Hadash-Ta’al List

                                                            2.         Central Elections Committee for the 21^st Knesset

                                                            3.         Attorney General

Respondents in EA 1876/19:            1.         Central Elections Committee for the 21^st Knesset

                                                            2.         Likud Faction et al.

                                                            3.         Dr. Michael Ben Ari et al.

                                                            4.         Attorney General

                                                            5.         The Knesset

 

EDA 1806/19: Approval procedure under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1866/19: Appeal under sec. 63A(d) and sec. 65(A1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1867/19: Appeal under sec. 64(a1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1876/19: Appeal under sec. 64(a) of the Knesset Elections Law [Consolidated Version], 5729-1969

 

The Supreme Court

Before: President E. Hayut, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit, Justice N. Sohlberg, Justice M. Mazuz, Justice A. Baron, Justice G. Karra, Justice D. Mintz

 

Supreme Court cases cited:

1.         EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. MK Ahmad Tibi, IsrSC 57 (4) 1 (2003)

 

2.         EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset (Jan. 21, 2009)

3.         EDA 9255/12 Central Election Committee for the 19th Knesset v. MK Hanin Zoabi (Feb. 18, 2015)

4.         EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset, IsrSC 39(2) 225 (1985) [https://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee]

5.         EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12^th Knesset, IsrSC 42(4), 177 (1988) [https://versa.cardozo.yu.edu/opinions/kach-v-central-election-committee-twelfth-knesset]

6.         EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi, (Dec. 10, 2015)

7.         LCA 7504/95 Yassin v. Registrar of Parties, IsrSC 50(2) 45 (1996)

8.         EA 1/65 Yaakov Yeredor v. Chairman of the Central Elections Committee for the 6^th Knesset, IsrSC 19(3) 365 (1964) [https://versa.cardozo.yu.edu/opinions/yeredor-v-chairman-central-elections-committee-sixth-knesset]

9.         EA 2/88 Ben Shalom v. Central Elections Committee for the 12^th Knesset, IsrSC 43(4) 221 (1989)

10.       EA 2805/92 Kach List v. Chairman of the Central Elections Committee for the 13^th Knesset (unpublished)

11.       EA 2858/92 Movshovich v. Chairman of the Central Elections Committee for the 13^th Knesset, IsrSC 46(3) 541 (1992)

12.       HCJ 5744/16 Ben Meir v. Knesset, (May 27, 2018)

13.       HCJ 11225/03 Azmi Bishara v. Attorney General, IsrSC 60(4) 287 (2006)

14.       HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General, (Dec. 9, 2015)

15.       HCJ 392/72 Berger v. District Planning and Building Council, Haifa District, IsrSC 27(2) 764 (1973)

16.       HCJ 547/98 Federman v. Government of Israel, IsrSC 53(5) 520 (1999)

17.       AAA 8342/02 Ben Gvir v. Commissioner of Police, IsrSC 57(1) 61 (2002)

18.       LCA 6709/98 Attorney General v. Moledet Gesher-Tzomet List for the Nazereth Illit Local Council Elections, IsrSC 53(1) 351

19.       HCJ 4552/18 Zahalka v. Speaker of the Knesset, (Dec. 30, 2018)

20.       EA 2600/99 Erlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

21.       HCJ 5364/94 Wilner v. Chair of the Israel Labor Party, IsrSC 49(1) 758 (1995)

22.       HCJ 14/86 Laor v. Theater and Film Review Board, IsrSC 41(1) 421 (1987)

23.       HCJ 399/85 MK Rabbi Meir Kahane v. Broadcasting Authority Directorate, IsrSC 41(3) 255 (1987)

24.       HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner, (Dec/ 28, 2016)

25.       HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset, IsrSC 58 (6) 685 (2004)

26.       CA 4096/18 Chacham and Or-Zach Advocates v. Assessment Officer – Akko, (May 25, 2019)

27.       CrimA 7007/15 Shmil v. State of Israel, (Sept. 5, 2018)

28.       CA 8742/15 Astrolog Publishers Ltd., v. Ron, (Dec. 3, 2017)

29.       CrimA 961/16 Alharoush v. State of Israel, (Nov. 25, 2018)

30.       AAA 3326/18 A. v. Director of Firearm Licensing, Southern District – Ministry of Public Security, (Feb. 26, 2019)

31.       HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202 (2006) [https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]

32.       HCJ 7625/06 Martina Rogachova v. Ministry of Interior, (March 31, 2016) [https://versa.cardozo.yu.edu/opinions/rogachova-v-ministry-interior]

33.       EA 2600/99 Ehrlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

34.       CrimA 6833/14 Naffaa v. State of Israel, (Aug. 31, 2015)

35.       EDA 50/03 Central Elections Committee for the 16^th Knesset v. Tibi, IsrSC 57(4) 1 (2003)

 

 

Judgment (Reasoning)

(July 18, 2019)

 

President E. Hayut:

Introduction

1.         On March 6, 2019, the Central Elections Committee for the 21^st Knesset (hereinafter: the Elections Committee or the Committee) approved a request for the disqualification of Dr. Ofer Cassif (hereinafter: Cassif) from running as a candidate for the Knesset on the list of “Hadash – headed by Ayman Odeh, Ta’al – headed by Ahmed Tibi” (hereinafter: Hadash-Ta’al) but rejected a request to disqualify the Hadash-Ta’al list in its entirety. The Committee further accepted two requests to disqualify the Ra’am-Balad list (hereinafter: Ra’am-Balad) and to bar Advocate Itamar Ben Gvir from standing for election.

            These decisions were the focus of the appeal and approval proceedings before us.

            The three appeals – EA 1866/19, EA 1867/19 and EA 1876/19 – which will be presented below, were filed on March 12, 2019, in accordance with sec. 63A(d) of the Knesset Elections Law [Consolidated Version], 5729-1969 (hereinafter: the Elections Law) (in regard to the disqualification of a candidate) and secs. 64(a) and 64(a1) of that Law (in regard to the disqualification of lists). The approval proceeding – EDA 1806/19 – was filed on March 10, 2019 by the Elections Committee, in accordance with the provisions of sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset (hereinafter: Basic Law: The Knesset or the Basic Law).

2.         Sections 63A(e) and 64(b) of the Elections Law require that the Court issue a judgment in appeal and approval proceedings “no later than the 23^rd day prior to Election Day”. In regard to the elections for the 21^st Knesset, which took place on April 9, 2019, we were therefore required to render judgment in the appeal and approval proceedings no later than March 17, 2019. Under the time constraint from the time of the filing of the proceedings – March 10, 2019, and March 12, 2019 – to the date upon which we were required to render judgment – March 17, 2019 – we allowed the Respondents in each of the proceedings to file written pleadings, and we heard supplementary oral arguments before a nine-judge panel, as required by the Law.  The hearings took place on Wednesday, March 13, 2019, and Thursday, March 14, 2019, and the judgment was duly handed down on Sunday, March 17, 2019, without stating reasons in view of the statutory time constraints detailed above, and as has been usual in such proceedings over the years (see, for example: EDA 11280/02 Central Elections v. Tibi, [1]; EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset [2]; EDA 9255/12 Central Election Committee v. Zoabi [3]). In the judgment, a majority of eight justices, against the dissenting opinion of Justice D. Mintz, decided not to approve the decision of the Elections Committee in the matter of the disqualification of Cassif. The Court unanimously decided to reject the appeal in regard to the Elections Committee’s decision not to disqualify the Hadash-Ta’al list. The Court also decided, by a majority of eight justices, against the dissenting opinion of Justice D. Mintz, to grant the appeal in regard to the Ra’am-Balad list, and to order that the list is not barred from participating in the Knesset elections. The Court further unanimously rejected the appeal in regard to the decision not to disqualify Ben Gvir, and decided by a majority, against the dissenting opinion of Justice N. Sohlberg, to grant the appeal in the matter of Ben Ari and order his disqualification as a candidate for the 21^st Knesset. Four days later, on March 21, 2019, we published a summary of the reasoning grounding the judgment, and we now present the full reasoning.

 

General Background and Normative Framework

3.         The right to vote and be elected is the life breath of every democratic regime, and the conceptual foundation of this right is grounded in the fundamental principles of equality and freedom of political expression (EA 2/84 Neiman v Central Elections Committee [4], 262-264 (hereinafter: the first Neiman case); EA 1/88 Neiman v Central Elections Committee [5], 185 (hereinafter: the second Neiman case); EA 561/09 Balad v. Central Elections Committee [2], para. 2 (hereinafter: the Balad case); EDA 9255/12 Central Election Committee v. Zoabi [3], para. 7 (hereinafter: the first Zoabi case); EDA 1095/15 Central Elections Committee v. Zoabi [6], para. 5 (hereinafter: the second Zoabi case); cf. LCA 7504/95 Yassin v. Registrar of Parties [7], 58-60 & 71 (hereinafter: the Yassin case); Ruth Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, in A. Barak (ed.), Essays in Honor of Shimon Agranat, (1986), 145, 151-152 (in Hebrew) (hereinafter: Gavison)).

            Nevertheless, equality and freedom of political expression are not unrestricted rights, and it has already been held that “it is the right of a democracy to deny the participation in the democratic process of lists that reject democracy itself […] one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14 (hereinafter: the Tibi case); and further see the Yassin case, p. 62, the first Zoabi case, para. 8; the second Zoabi case, para. 6). Therefore, along with the formal capacity conditions that must be met in order to realize the right to vote and be elected, which concern, inter alia, age and citizenship (see: sec. 5 of Basic Law: The Knesset in regard to the right to vote, and secs. 6, 6A and 7 of that Law in regard to the right be elected), there is a need for material restrictions intended to prevent participation in the elections by lists and candidates that seek to use the tools of democracy in order to deny the very existence of the state or infringe its fundamental principles.

4.         As will be explained in the brief survey below, such material restrictions have been developed over the years in Israeli law, as well. At its inception, the State of Israel adopted a democratic regime characterized, inter alia, by the values of equality and freedom of political expression mentioned above. Alongside those values, and without any necessary contradiction, the sovereign State of Israel was established as a Jewish state, in recognition of the right of the Jewish people to national rebirth in its land. This important fundamental principle, which Justice M. Cheshin defined as an “axiom” when he served as chair of the Central Elections Committee for the 16^th Knesset, must also be protected. President A. Barak addressed this in the Tibi case, stating:

There are many democratic states. Only one of them is a Jewish state. Indeed, the reason for the existence of the State of Israel is its being a Jewish state. This character is central to its existence, and it is – as Justice M. Cheshin stated before the Central Elections Committee – an “axiom” of the state. It should be seen as a “fundamental principle of our law and system” (emphasis original; ibid., p. 21).

President D. Beinisch addressed the uniqueness of Israeli democracy in this regard in the Balad case, noting:             

The State of Israel’s being the only state that serves as a home for the Jewish people, and therefore preserves unique characteristics worthy of protection, is the starting point for every discussion of the character of the state (ibid., para. 3).

In this regard, it would not be superfluous to note that there are those who hold the opinion that there is a “significant moral tension that requires a process of reconciliation between opposing values (Justice I. Englard in the Tibi case, p. 64. For a detailed discussion of this subject, see:  Adi Gal & Mordechai Kremnitzer, Disqualification of Party Lists and Candidates – Does it Strengthen Democracy or Weaken It? (Israel Democracy Institute, 2019) 22-26 (Hebrew)). As opposed to this, there are those who are of the opinion that there is no contradiction between democratic values and Jewish values, but rather they derive from one another (the second Neiman case, pp. 189-190; Justice Y. Amit in the second Zoabi case, para. 3; Elyakim Rubinstein, On the Equality of Arabs in Israel, 1 Kiryat Mishpat 17, 26 (20021) (Hebrew)). Below, we will address the material restrictions established in regard to the right to vote and be elected in Israeli law. As  will be seen, these restrictions define Israel as a Jewish and democratic state without distinction between these two frameworks, in the spirit of the principles we addressed above.

5.         Since 1985, the material constitutional restrictions upon the right to vote have been grounded in sec. 7A of Basic Law: The Knesset. This section, in its current form, establishes:

7A(a).  A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following:

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

6.         As already noted, these restrictions developed in Israeli law over the course of years. Basic Law: The Knesset, which was enacted in 1958, did not originally comprise a material provision – as opposed to a formal provision in regard to competence – that restricted the right to be elected. The absence of such a provision notwithstanding, in EA 1/65 Yeredor v. Chairman of the Central Elections Committee [8] (hereinafter: the Yeredor case), the Court recognized the authority of the Elections Committee not to approve the participation of the Socialists list in the elections for the 6^th Knesset because the list, and the El Ard organization with which it identified, “deny the integrity of the State of Israel and its very existence”. Some twenty years later, the Court again addressed the disqualification of a list from standing for election. The Central Elections Committee for the elections for 11^th Knesset in 1984 disqualified the Kach list and the Progressive List for Peace from standing for election. The Kach list was disqualified by the Committee for the racist and anti-democratic principles that it espoused, its open support for terrorism, and incitement of hatred and hostility between different sectors of the Israeli populace. The Progressive List for Peace was disqualified due to the Committee’s determination that the list comprised subversive foundations and tendencies and that central members of the list acted in a manner that identified with the state’s enemies. The disqualification of the two lists was brought before the Court in the first Neiman case, which held, by majority, that in the absence of an express provision of law, the doctrine established in the Yeredor case should be limited to the causes for disqualification set out there, i.e., denial of the very existence of the state – which must be proven by clear, unequivocal, and persuasive evidence (for a critique, see Gavison, at pp. 184-195).

7.         Following the judgment in the first Neiman case, the legislature amended Basic Law: The Knesset and added sec. 7A. This section, in its original form, comprised three causes for disqualifying a list of candidates whose purposes or actions expressly or impliedly amounted to (1) negation of the existence of the state as the state of the Jewish people; (2) negation of the democratic character of the state; (3) incitement to racism.

            When the Kach list again sought to stand for election for the 12^th Knesset in 1988, the list was disqualified by the Elections Committee for the reasons set out in subsecs. (2) and (3) of sec. 7A. The appeal of the decision was denied by the Court (see: the second Neiman case), which held that the list indeed negated the democratic character of the state and that its activities constituted incitement to racism. In its decision, the Court emphasized that given the importance of the freedoms that the rights to vote and to be elected are intended to realize, affirming those rights is preferable to denying them, and the disqualification of a list must be reserved for the most extreme cases. That year, the Court also adjudicated another proceeding related to the elections for the 12^th Knesset. The Court majority denied an appeal of a decision by the Central Elections Committee not to disqualify The Progressive List for Peace from standing for election (EA 2/88 Ben Shalom v. Central Elections Committee [9]). In 1992, after the murder of the founder of the Kach movement, Rabbi Meir Kahane (hereinafter: Rabbi Kahane), in 1990, the Central Elections Committee disqualified two lists that viewed themselves as the heirs to Rabbi Kahane from participating in the elections for the 13^th Knesset. A unanimous Court denied the appeals of the disqualifications, adopting the criteria established in the second Neiman case (EA 2805/92 Kach List v. Chairman of the Central Elections Committee [10] (hereinafter: the Kach case)); EA 2858/92 Movshovich v. Chairman of the Central Elections Committee [11] (hereinafter: the Movshovich case)).       

8.         In 2002, sec. 7A of the Basic Law was amended. The amendment comprised three primary changes: (1) the separate causes for disqualification in regard to negating the existence of the State of Israel as a Jewish state and as a democratic state were unified as one cause; (2) an additional cause was added under which a list could be disqualified from participation in elections if it supported armed struggle by a hostile state or a terrorist organization against the State of Israel; (3) it was established that not only could an entire list be disqualified, but also a candidate could be disqualified from standing for election, but that as opposed to the disqualification of a list, the disqualification of a candidate required the approval of the Supreme Court.

9.         In the Tibi case, the Court addressed a number of decisions given by the Central Elections Committee for the 16^th Knesset in regard to the elections in January 2003, among them the first decisions of their kind pursuant to the aforementioned amendment to sec. 7A of the Basic Law. The Elections Committee decided to disqualify Knesset members Ahmed Tibi of the Hadash-Ta’al list (hereinafter: Tibi) and Azmi Bishara of the Balad list (hereinafter: Bishara). The Committee further decided that Baruch Marzel of the Herut list (hereinafter: Marzel) should not be disqualified. In addition, the Committee decided to disqualify the Balad list from standing for election. In the Tibi case, the Court focused upon and outlined the criteria for each of the causes in sec. 7A of the Basic Law. On that basis, the Court decided not to approve the Election Committee’s decision to disqualify Knesset members Tibi and Bishara from standing for election. The decision in regard to Tibi was unanimous, whereas the decision in regard to Bishara was by a majority. A majority further dismissed the appeal of the Committee’s decision to permit Marzel’s candidacy, and the appeal against the disqualification of the Balad list was granted by a majority, and it was held that the list could stand for election.

10.       Another amendment to sec. 7A of the Basic Law was adopted in 2008, adding sec. (a1) that established: “In connection with this article, a candidate who was illegally present in an enemy state in the seven years that preceded the deadline for submitted lists of candidates shall be considered someone whose actions constitute support for an armed conflict against the State of Israel, unless he has proven otherwise”. About a year after that amendment, prior to the elections for the 18^th Knesset, the Court addressed an appeal of the Elections Committee’s decision to disqualify the Balad and Ra’am-Ta’al list for the causes enumerated in secs. 7A(a) and (3) of the Basic Law. A majority of the Court granted the appeal, and            the participation of those lists was permitted. In 2012 and 2015, the Court was again called upon to address the disqualification of candidates. In the first Zoabi case, the Court unanimously overturned the Central Election Committee’s decision to disqualify Knesset member Hanin Zoabi (hereinafter: Zoabi) from running in the elections for the 19^th Knesset for the causes enumerated in secs. 7A(a)(1) and (3) of the Basic Law. In the second Zoabi case, two approval proceedings were addressed jointly after the Central Elections Committee disqualified Zoabi’s participation in the elections for the 20^th Knesset for the causes enumerated in sec. 7A(a)(1) and (3) of the Basic Law, and also disqualified Marzel from participating in those same elections for the causes enumerated in secs. 7A(a)(1) and (2). A majority of the Court decided not to approve the Elections Committee’s decisions in regard to both Zaobi and Marzel, and both stood as candidates in those elections.

11.       The judgment in the second Zoabi case was rendered in 2015. In 2017, section 7A of the Basic Law was amended again to add the words “including his expressions” after the words “the actions of the person”. It is important to emphasize that, as opposed to various arguments raised before us in these proceedings, this amendment – as stated in its Explanatory Notes – “was not intended to change the case law of the Court according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state”. In other words, the strict evidentiary threshold outlined in the case law over the years for proving the existence of the causes for disqualification remains as it was, given the purpose of the section and the balance between the values it is intended to protect.

            To complete the picture, we would note that in 2016, the Knesset approved an amendment to the Basic Law in regard to the termination of the tenure of a member of the Knesset for incitement to racism or support of armed struggle by an enemy state or of a terrorist organization against the State of Israel, as stated in secs. 7A(a)(2) or 7A(a)(3) of the Basic Law. We would further note for the sake of completing the picture that two petitions filed against the constitutionality of the said amendment were denied (HCJ 5744/16 Ben Meir v. Knesset [12]) (hereinafter: the Ben Meir case).

 

The Causes for Disqualification established in Section 7A

12.       Having surveyed the proceedings and legislative amendments relevant to the disqualification of lists and candidates seeking to stand for election to the Knesset and the development of the case law and the Basic Law in this regard, it would now be appropriate to address the interpretive principles and the criteria outlined and applied in all that regards the various causes for disqualification. I would preface by stating that the prevailing trend in this Court’s case law is that a cautious, restrained approach should be adopted in all that relates to the disqualification of lists and candidates participating in Knesset elections. Indeed, in view of the magnitude of the rights to vote and be elected, this Court has repeatedly held that the starting point is that the causes for disqualification should be interpreted narrowly and should be applied in the most extreme cases (see, for example, the second Neiman case, at p. 187; the Tibi case, at pp. 17-18). From this starting point, the case law derived the answer to the question of what must be proved in order to ground the presence of any of the causes for disqualification, as well as the criteria in regard to the required evidentiary threshold. We will first examine the case-law interpretation of what is required to prove each of the causes for disqualification, and then examine the criteria established in regard to the required evidentiary threshold.

(1) Negation of the existence of the State of Israel as a Jewish and democratic state

13.       The first cause established under sec. 7A(a)(1) of Basic Law: The Knesset concerns preventing participation of candidate lists or candidates in the elections if the purposes or actions of the list or the actions of the candidate, including his statements, constitute a negation of the existence of the State of Israel as a Jewish and democratic state. The “nuclear-minimal” characteristics of the State of Israel as a Jewish state and its “nuclear-minimal” characteristics as a democratic state were established in the Tibi case, which held that it is the infringement of these characteristics that may give rise to a cause for disqualification under sec. 7A(a)(1) of the Basic Law. In the matter of the “nuclear” characteristics that define the State of Israel as a Jewish state, it was held that these include the right of every Jew to immigrate to the State of Israel, in which there will be a Jewish majority; that Hebrew is the primary official language of the state; that the symbols and holidays of the state primarily reflect Jewish tradition, and that the Jewish heritage is a central element of the religious and cultural heritage of the state (the Tibi case, p. 22; and compare the view of Justice Y. Turkel in that case at p. 101; and see the second Zoabi case, para. 66, and the first Zoabi case, para. 20; the Balad case, para. 6; and compare the Yassin case, p. 66; the opinion of Justice S. Levin in the Ben Shalom case, p. 248; and see: Amnon Rubinstein & Raanan Har-Zahav, Basic Law: The Knesset, 64 (1993) (Hebrew)).

            As for the “nuclear” characteristics of the State of Israel as a democratic state, it was held that “these characteristics are based […] upon recognition of the sovereignty of the people, as expressed in free, equal elections; recognition of the core human rights, among them human dignity, respect and equality, maintaining the separation of powers, the rule of law and an independent judiciary” (the Tibi case, p. 23; and see the second Zoabi case, para 29; and compare the Yassin case, p. 66). It was further noted in the Tibi case that a list that negates the right to vote for the Knesset on ethnic-national grounds, or a list seeks to change the regime by violent means will not be permitted to stand for election, as it essentially negates the democratic foundations of the Israeli regime (ibid., p. 24; and see the second Neiman case, p. 190, and the second Zoabi case, para. 30).

(2) Incitement to racism

14.       The second cause for disqualification, established in sec. 7A(a)(2), is incitement to racism. We will address the grounds of this cause and its underlying rationales, particularly in a Jewish state, at greater length below. At this stage, we would note that already in the second Neiman case, in which, for the first time following the enactment of sec. 7A of the Basic Law, the Kach list was disqualified on the grounds of incitement to racism, the Court held, per President M. Shamgar,  that the “objectives and conduct [of the list] are also clearly racist: systematically fanning the flames of ethnic and national hate, which causes divisiveness and animosity; calling for the forceful deprivation of rights; systematic and intentional degradation directed towards a specific part of the population selected because of their national origin and ethnicity; [calling] for their humiliation in ways very similar to the terrible experiences of the Jewish nation” (ibid., p. 197).

(3) Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

15.       The third cause for disqualification, established in sec. 7A(a)(3) of the Basic Law, concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel. This cause is premised upon the primary conceptual justification for the disqualification of candidates and lists – viz., defense against those who would seek to negate the very existence of the state or undermine the foundations of its existence and its democratic nature by means of armed struggle (the first Zoabi case, para. 29). In the Tibi case, President A. Barak noted in regard to this cause that: “Democracy is allowed to prevent the participation of candidate lists that employ violence or support violence as a tool for changing the nature of the regime” (ibid., p. 26; and also see the second Zoabi case, para. 69). Preventing participation by virtue of this cause will, of course, be possible where a candidate or a list personally takes active part in an armed struggle of a terrorist organization or an enemy state, as well as where they encourage such a struggle or provide material, political or other support (ibid., para. 69; and see the Tibi case, p. 27; the Balad case, para. 7; the first Zoabi case, para. 29). Disqualification of a list or candidate by virtue of this cause would be possible only if the support is of an armed struggle by an enemy state or a terrorist organization (the Tibi case, p. 27; and see the second Zoabi case, para. 69; for a detailed discussion of this cause, see: Gal & Kremnitzer, 16-19).

 

The Criteria in regard to the Required Evidentiary Threshold

16.       Alongside the narrow interpretation of the causes for disqualification established under sec. 7A of the Basic Law, over the years, the case law further added a series of strict criteria in regard to the required evidentiary threshold for the crystallizing of any of the causes. These criteria limit the possibility of disqualifying a list or candidate from standing for election to the Knesset only to clear, extreme cases due to the intense caution that the Court adopts as the starting point in this regard (the Balad case, para. 3; and see the opinion of Justice S. Levin in the Ben Shalom case, p. 248; the Kach case, p. 2). Below, we will summarize the criteria outlined in the case law in regard to the evidentiary threshold required for the existence of the disqualifying causes. These criteria were, for the most part, first applied in regard to the disqualification of lists, and after the amendment of the Basic Law in 2002, they were respectively adopted in regard to the disqualification of an individual candidate, as well (see the Tibi case, the first Zoabi case and the second Zoabi case). These are the criteria:

            (-)        First, in order to decide whether one of the elements set forth in sec. 7A is present in the objectives or actions of a list or a candidate, it must be shown that the objective is one of the dominant characteristics of the list’s or the candidate’s aspirations or activities, and that they seek to participate in the elections in order to advance them (see the second Neiman case, p. 187; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Second, it must be shown that these central, dominant purposes can be learned from express declarations and direct statements or reasonable conclusions of clear, unequivocal significance (the second Neiman case, p. 188; the Tibi case, p. 18, the Balad case, para. 4; the first Zoabi case, para 14).

            (-)        Third, it must be shown that the list or the candidate actively works for the realization of the said objectives, and that there was non-sporadic activity for their realization. It was held that objectives of a theoretical nature are insufficient, and that there must be a showing of systematic, repeated activity whose “intensity must be given severe, extreme expression” (the second Neiman case, p. 196; the Tibi case, p. 18; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Fourth, the evidence grounding the actions or objectives sufficient to prevent standing for election to the Knesset must be “clear, unambiguous and persuasive” (the second Neiman case, p. 188; the Tibi case, p. 18; the second Zoabi case, para. 34; compare: the first Neiman case, p. 250), and a “critical mass” of highly credible evidence is required to justify the disqualification (the Tibi case, p. 43; the first Zoabi case, para. 14). The burden of proof in this regard rests upon the party arguing for disqualification of the list or candidate, and a doubt arising as to the sufficiency of the evidence must weigh against the disqualification (the second Neiman case, pp. 248-249; the Kach case, p. 3).

17.       A complex question concerning the evidentiary threshold for proving the causes for disqualification under sec. 7A of the Basic Law is that of whether to apply probability tests for the realization of the dangers that the causes for disqualification are intended to prevent. There is a difference of opinion in the case law, and the matter has been left for further consideration and has yet to be decided. The spectrum of opinions expressed on this matter range from an approach that rejects the application of the probability test (see the position of Justice M. Elon in the first Neiman case, p. 297; President M. Shamgar following the enactment of sec. 7A of Basic Law: The Knesset in the second Neiman case, p. 187; Justice S. Levin in the Ben Shalom case, p. 248; and Justices S. Levin. E. Mazza, and D. Dorner in the Tibi case, pp. 81, 96-97, and 99), to the opposite approach that is of the view that this test should be applied to each and every one of the disqualification causes in sec. 1A of the Basic Law (Justice E. Rivlin in the Tibi case, p. 106, and see Barak Medina, Forty Years to the Yeredor  Decision: The Right to Political Participation, 22 Mekhkarei Mishpat 327, 376-381 (2006) (Hebrew)). As noted, the matter has been left for further consideration and has not yet been decided in the case law (see President A. Barak and Justices A. Procaccia and D. Beinisch in the Tibi case, pp. 21, 88, 90; President D. Beinisch in the Balad case; President A. Grunis in the first Zoabi case, para. 34; President M. Naor in the second Zoabi case, para. 36).

            A middle position between these two opposing views on the application of the probability test has also been expressed, according to which a distinction can be drawn between the causes under sec. 7A(a)(1) and (3) and the cause concerning incitement to racism under sec. 7A(a) (2). Thus, for example, in the Tibi case, Justice Procaccia noted that “condemnation of incitement to racism and its removal from the political election process are values unto themselves, independent and unqualified even when unaccompanied by any probability of the realization of the potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entry of inciters to racism into the political arena […] incitement to racism is condemned as a value of the universal and national heritage, and it stands beyond the test for the probability of its foreseeable danger under any particular criterion. The contradiction between racism and the fundamental values of the state is so extreme that anyone who holds it as part of one’s political doctrine should be disqualified out of hand” (ibid., p. 90; Gal & Kremnitzer, 62-63). Another opinion that distinguishes the cause related to incitement to racism and the other causes in regard to the probability test, and which proposes applying a very low-level probability test to it, was expressed by Justice D. Beinisch in that matter, in stating: “If I were of the opinion that we should adopt the approach that applies ‘probability tests’ for the disqualification of lists or candidates, then in all that regards racism, I would hold that ‘racism’ in its ‘nuclear’ sense comprises, by its very nature, a potential for danger whose probability is a real possibility. Racism, by its very nature, may spread like a disease even when it appears that the scope of the political activity surrounding it is small, and the political prospects of the list or candidate are not serious. Racism is a type of disease for which isolation and removal from the political and social arena are conditions for preventing its spread” (p. 88). We will address this subject below, and examine whether there is, indeed, a place for a different approach to the cause of incitement to racism as opposed to the other causes in relation to probability tests.

            Another question that derives to some extent from the probability test and that concerns the necessary evidentiary threshold for proving the existence of the causes for disqualification is whether and to what extent there is a connection between the causes for disqualification and the criminal offenses intended to protect those values. In this regard, it would appear that the approach adopted in the case law holds that the Penal Law can assist in identifying the presence of the elements of causes for disqualification, while emphasizing that we are concerned with different methods for the prevention of the phenomena and that the tests applicable in each of the areas are not the same (see President M. Shamgar in the second Neiman case, p. 191; President A. Grunis in the first Zoabi case, para. 32; and see Gavison, p. 166; and cf. the Ben Meir case, para. 28; and HCJ 11225/03 Bishara v. Attorney General [13]).

 

An Elections Appeal and Approval of an Elections Committee Decision – What is the Difference?

18.       Basic Law: The Knesset distinguishes two types of decisions by the Central Elections Committee. The first is Elections Committee decisions to prevent or not prevent a candidate list from standing for election. Such decisions can be challenged in an appeal to the Supreme Court, under secs. 64(a) and 64(a1) of the Elections Law. The second is Election Committee decisions declaring that a particular candidate is barred from participating in the elections. Such a decision requires the approval of the Supreme Court, under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Elections Law, whereas an Elections Committee decision to deny a request to bar a candidate from standing for election is of the first type of decisions in the sense that it does not require approval but can be appealed to the Supreme Court, under sec. 63A(d) of the Elections Law.

            The procedure for approving an Elections Committee decision is not one of “regular” judicial review in the sense that decision is not consummated until approval is granted. In this, it differs from appeal proceedings in regard to Election Committee decisions, which come into force when given. The scope of the Court’s authority in an approval proceeding is not identical to that granted it in an appeal proceeding. It has been held in this regard that the Court must refrain from nullifying a decision under appeal even if it would have decided differently, as long as it is lawful and does not deviate from the margin of reasonableness. As opposed to this, in an approval proceeding, the Court is granted authority to examine whether it, itself, approves the disqualification of the candidate from standing for election (the Tibi case, pp. 28-31; the first Zoabi case, para 15; the second Zoabi case, paras. 12-13).  It is interesting to note that there are different approaches in the case law in regard to the scope of the Court’s intervention in the decisions of the Elections Committee due to the fact that it is primarily a political body that weighs political considerations. Thus, there are those who take the view that this fact justifies narrowing the scope of intervention in the Committee’s decisions (Justice E. Rivlin in the Tibi case, p. 109, and Justice S. Levin in the Ben Shalom case, p. 251). As opposed to this, there are those of the opinion that “this fact of the political composition of the Committee, with the exception of its chair, requires an examination of the merits of the Committee’s decision by the this Court in order to prevent political considerations from outweighing an objective legal examination” (Deputy President M. Elon in the Ben Shalom case, p. 279; for a similar view, see Justice D. Beinisch in the Tibi case, p. 86 and the Balad case, para. 16).

            This feature of the Central Elections Committee as a primarily political body that makes decisions influenced by political considerations, with no obligation to explain those decisions, indeed justifies examination and consideration by the legislature (see the comment of President Naor in the second Zoabi case, para. 78, and Gal & Kremnitzer, 61-62). At present, the Court is responsible for both types of proceedings brought before it in accordance with the provisions of Basic Law; The Knesset and the Elections Law, and the distinctions between them as presented above. In this regard, it would not be superfluous to further note what we held in this regard in another context – that of the Ben Meir case – in which it was argued that there is constitutional significance to the distinction between the two proceedings. In rejecting that argument, we held: “There is, indeed, a difference in the scope of authority granted to the Court in the framework of an elections appeal as opposed to an approval of a decision […] however, at the end of the day, this Court has the authority [even in an appeals proceeding – E.H.] to review the decision on the merits, and to oversee its lawfulness and reasonableness, including all that relates to the factual foundation” (ibid., para. 34).

19.       Having presented the general normative framework for the proceedings before us, I will now turn to an examination of each of the four proceedings and decide upon them.

EA 1866/19 Freij v. Ben Ari

20.       Three requests for the disqualification of Ben Ari and Ben Gvir were submitted to the Central Elections Committee. Two of the requests – that submitted by the Israel Religious Action Center - Israel Movement for Progressive Judaism and the Tag Meir Forum, and that submitted by MK Stav Shaffir – relied upon two causes for disqualification: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and incitement to racism under sec. 7A(a)(2) of the Basic Law. The third request – submitted by members of the Meretz faction – relied upon the single cause of incitement to racism. After considering those requests, the Elections Committee decided, as noted, to reject all three requests, and thus the appeal before us, which was filed jointly by all the parties requesting disqualification.

 

Arguments of the parties

21.       The Appellants argue that Ben Ari and Ben Gvir have consistently acted for years to realize the racist doctrine of Rabbi Meir Kahane and the Kach list, which was disqualified from running for election, and act in an extreme manner to humiliate Israeli Arabs, including by calling for their expulsion from the country. According to the Appellants, Ben Ari and Ben Gvir support a racist ideology that seeks to undermine the principles of equality and human dignity in regard to anyone who is not Jewish. It was argued that the judgments that addressed the Kach list clearly established that its ideology is racist and infringes the fundamental principles of the democratic regime. The Appellants are of the opinion that the primary characteristic of the conduct of Ben Ari and Ben Gvir is ongoing incitement to racism, and that this is also expressed in the platform of the Otzma Yehudit party, which opposes democratic values. It was argued that the declarations of the two were consistently and continuously translated into severe actions that were, in part, also carried out by other elements of the Otzma Yehudit party.

22.       Ben Ari and Ben Gvir relied upon the Election Committee’s decision and argued that the appeal should be denied. According to them, the evidence presented by the Appellants does not justify their disqualification. Their primary argument was that the platform and their public activity over the years apply to those who are “an enemy of Israel”, who are not loyal to the state, and does not apply generally to all “the Arabs” as such, and supports and encourages the emigration of anyone who is not loyal “and who is an enemy of the state”. According to them, the fact that this Court did not disqualify Marzel from participating in the elections shows that they, too, should not be disqualified.

23.       The Attorney General was of the opinion that Ben Ari should be barred from participating in the elections on the grounds of incitement to racism. He argues that the Appellants presented persuasive, clear, unequivocal, recent evidence, particularly since May 2018, in which Ben Ari is heard speaking in various films, some of which were uploaded to his Facebook page. According to the Attorney General, we are concerned with ongoing, consistent expressions over a significant period of time that are at the hard core of incitement to racism. It was argued that these statements show that Ben Ari refers to the Arab population in its entirety while calling for a violent denial of the rights of the Arab population of the State of Israel and for their systematic, targeted humiliation on the basis of their ethno-national identity.

            As for Ben Gvir, the Attorney General was of the opinion that despite the fact that the collection of evidence in his regard is very troubling, and that some of his statements come “dangerously close to the line that would bar a person from standing for election to the Knesset”, he should not be disqualified. According to the Attorney General, as opposed to the evidence presented against Ben Ari, the evidence in regard to Ben Gvir is insufficient to constitute the persuasive, clear, unequivocal evidentiary foundation required for disqualification. This, because most of the evidence is not from the recent past, and in view of Ben Gvir’s declarations and explanations in the current disqualification hearings.

24.       As stated in the judgment we issued without the reasoning on March 17, 2019, we decided by majority, against the dissenting view of Justice N. Sohlberg, to adopt the position of the Attorney General and grant the appeal in EA 1866/19 in all that regards Ben Ari, and to order his disqualification form standing as a candidate in the elections for the 21^st Knesset, while we unanimously decided to deny the appeal in the matter of Ben Gvir.

 

Disqualification of a Candidate on the grounds of Incitement to Racism

25.       Racism is a well-known societal disease from which the human race has suffered since time immemorial. Racism shows its ugly face in hatred and incitement to hatred of the other, simply by reason of inborn traits or communal, religious, ethnic, or national affiliation. It strips people of their humanity on the basis of those affiliations and violates the basic right to human dignity and equality granted to all who are created in God’s image (HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General [14], para. 26 of the opinion of Justice S. Joubran) (hereinafter: the Torat Hamelech case)). The democratic State of Israel was established as the state of the Jewish people, which has experienced unparalleled racial persecution and suffering throughout the ages. Racism stands in absolute contradiction to the fundamental values upon which the state was established, and we, as Jews, have a special obligation to fight it uncompromisingly. Justice Z. Berenson addressed this in 1973 in HCJ 392/72 Berger v. District Planning and Building Council [15], 771, stating:

When we were exiled from our land and removed far from our country, we became victims of the nations amongst whom we lived, and in every generation, we tasted the bitterness of persecution, malice and discrimination only for being Jews “whose laws are different from those of any other people” [Esther 3:8]. With this bitter, miserable experience that seeped deep into our national and human consciousness, it might be expected that we would not walk in the corrupt path of the nations, and that with the renaissance of our independence in the State of Israel, we would be cautious and be wary of any hint of discrimination and unequal treatment against any law-abiding non-Jewish person [..] Hatred of foreigners is a double curse: it corrupts the image of God of the hater and inflicts evil upon the blameless hated. We must show humanity and tolerance to everyone created in God’s image (HCJ 392/72 Berger v. District Planning and Building Council, IsrSC 27(2) 764, 771 (1973); and see and compare: the Tibi case, p. 89; the opinion of Deputy President E. Rubinstein in the Torat Hamelech case, para. 38 and in the second Zoabi case (dissenting in regard to the result), para. 116).

26.       The Israeli legislature took up this mission following the elections for the 11^th Knesset, which took place in 1984, and in the course of which, as noted, the disqualification of the Kach party was requested due to incitement to racism (the first Neiman case). Thus, Amendment no. 9 to Basic Law: The Knesset added sec. 7A, which sets out the causes permitting the disqualification of a list from standing for election, among them that of incitement to racism. The Explanatory Notes the bill explain in this regard that this cause is premised upon the recognition of the severity and danger of the phenomenon of racism” (Basic Law: The Knesset (Amendment no, 9) Bill), and in the plenary session for the second and third readings of the bill, the chair of the Constitution, Law and Justice Committee, MK Eliezer Kulas stated:

Democracy is the “credo” of the people and their way of life. One must be educated to democracy and democracy must be defended. In a democracy, there is no place for incitement to racism, no place for racism, no place for harming any person on the basis of race, religion, nationality, or sex. Racism and discrimination are contrary to the character of a democratic regime and the character of the Jewish people, which experienced what racism is on its own flesh (Transcript of the 118^th session of the 11^th Knesset, p. 3898 (July 31, 1985) (hereinafter: Transcript of Session 118 of the Knesset)).

            In regard to our special, historical duty as Jews to fight against racism, Prof. Gavison noted in her 1986 article (cited above):

The Israeli legislature added this cause for disqualification for various historical reasons. I view incitement to racism as a particular (severe) instance of value inconsistency. Incitement to racism is an extreme rejection of the obligation to the equal value of the person. On the basis of the lessons of history of the last century, in which Jews were innocent victims of such incitement, there is complete justification for designating incitement to racism as an express form of incompatibility with the fundamental values of the state (ibid., p. 161).

27.       In parallel to Amendment no. 9 of Basic Law: The Knesset, the Penal Law, 5737-1977 (hereinafter: the Penal Law) was also amended to add the offense of incitement to racism. “Racism” was defined in sec. 144A of the Law as “persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin”. Then Minister of Justice Moshe Nissim addressed the relationship between these two amendments in stating: “We must view both of these bills as of a piece, […] for the fundamental, proper, considered, and balanced treatment […] of phenomena with which the State of Israel cannot be reconciled” (Transcript of Session 118 of the Knesset, p. 3361), while it was noted in the Explanatory Notes of the amendment to the Penal Law that “the Hebrew heritage deems the dignity and value of the person, created in God’s image, and making peace among people as exalted values. […] Jewish heritage views the demeaning of human dignity as a serious offense” (Explanatory Notes to the Penal Law (Amendment no. 24) Bill, 5745-1985, p. 195).

            In the second Neiman case, President M. Shamgar addressed, inter alia, the definition of the term “racism” in the Penal Law and held that for the purpose of interpreting sec. 7A of the Law, there is no need to achieve a definitive definition of the term “incitement to racism”. President Shamgar also rejected the argument of counsel for the Kach list according to which “racism” refers only to biological distinctions, holding: “Different forms of persecution based on nationality are widely accepted today as a form of racism” (the second Neiman case, p. 192; for a discussion of the relationship between the offense of incitement to racism under sec. 144B of the Penal Law and sec. 7A, see: the first Zoabi case, para. 32; and compare Gavison, pp. 170-171).  Denunciation of incitement to racism, and the struggle against it in the legal field also found expression in other legislative acts (see, for example, sec. 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951; sec. 5 of the Political Parties Law, 5752-1992; sec. 42A of Basic Law: The Knesset; and sec. 39A(3) of the Municipal Authorities (Elections) Law, 5725-1965).

28.       Combatting incitement to racism and provisions banning political activity of various groups on that basis can also be found abroad. Thus, for example, the President of France is authorized to order the disbanding of political parties for various reasons, among them incitement to racism or other group discrimination. The President’s decision can be appealed to the French Supreme Administrative Court (Conseil d’Etat) (Gal & Kreminitzer, 43-45; Gregory H. Fox & George Nolte, Intolerant Democracies, 36 Harv. Int. L. J. 1, 27-29 (1995); European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, 16 (1999) (hereinafter: the Venice Commission Report)). Spanish law allows for declaring a political party unlawful if it systematically infringes fundamental freedoms and rights by encouraging or justifying the assault, exclusion or persecution of people on the basis of ideology, belief, faith, nationality, race, sex or sexual orientation (Knesset Research and Information Center, International Parallels to sec. 7A of Basic Law: The Knesset and their Possible Consequences for the Termination of the Tenure of Members of Parliament, pp. 8-9 (2006) (hereinafter: the RIC Report); Erik Bleich, The Freedom to be Racist?: How the United States and Europe Struggle to Preserve and Combat Racism, p. 103 (2011); Gur Bligh, Defending Democracy: A New Understanding of the Party-Banning Phenomenon, 46 VNTJL 1321, 1338 (2013); Venice Commission Report, p. 16). The Czech Republic’s Political Party Law of 1991 prohibits the registration of parties whose activities endanger the rights and freedoms of citizens, and in 2010, the Czech Workers’ Party was banned, inter alia, because of incitement to racism (Miroslav Mareš, Czech Militant Democracy in Action: Dissolution of the Workers’ Party and the Wider Context of this Act, 26(1) East European Politics & Societies 33, 43-44 (2010); Mapping “Militant Democracy”: Variation in Party Ban Practices in European Democracies (1945–2015), 13(2) Euconst. 221, 238-239 (2017) (hereinafter: Mapping Militant Democracy); RIC Report, p. 17; Venice Commission Report, p. 16). There are similar restrictions in Poland, Portugal, Belarus, Ukraine, Bulgaria, and Romania (Venice Commission Report, pp. 16-17; RIC Report, pp. 10-12). The Penal Code of the Netherlands allows for the disbanding of organizations that endanger public safety, and by virtue of this law, it was held that the Centre Party ’86 encouraged discriminatory propaganda against foreigners and was a danger to the public. It was, therefore, disbanded in 1998 (Defending Democracy, p. 1339; Paul Lucardie, Right-Wing Extremism in the Netherlands: Why it is Still a Marginal Phenomenon, presented at Symposium, Right-Wing Extremism in Europe, 4-5 (2000); Mapping Militant Democracy, p. 238; for a comprehensive survey of the existing arrangements in various countries in regard to the disqualification of political parties and candidates in general, see, e.g., the Tibi case, pp. 14-15; the first Zoabi case, paras. 10-11; Talia Einhorn, Proscription of Parties that have a Racist Platform under Art. 7A of the Basic Law: The Knesset (1993)).

29.       The ban upon organizations that incite to racism is also grounded in international human rights law, which includes provisions treating of the prohibition of organized racist propaganda activities. For example, sec. 4(b) of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by Israel in 1979) establishes, inter alia, that the signatory states “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination […]”. Based, in part, on that convention, in 2018, the European Parliament passed a resolution in regard to the growing violence by European political groups and parties with a neo-fascist, neo-Nazi, racist or xenophobic agenda, and called upon the EU member states to adopt a number of concrete measures for effectively combatting the activities of those groups (see: European Parliament Resolution of 25 October 2018 on the rise of neo-fascist violence in Europe (2018/2869(RSP)).

30.       In Israel, in 2016, the State Comptroller, Judge (emer.) Yosef Haim Shapira, published a report that examined the activities of the Ministry of Education to promote education for living in common and for preventing racism, and found that not enough had been done in this area over the last years, given the differences among sections of the Israeli population that lead to discord and strife. The report further noted that “in this complex reality, we have experienced serious phenomena of hatred, racism, violence, divisiveness, sectarianism, and intolerance over the last few years” and “racist and violent statements, discrimination, persecution and even shocking hate crimes have become not so infrequent occurrences […] while the social networks serve as a fertile ground for disseminating hatred of the other” (State Comptroller, Education to Common Life and for the Prevention of Racism – Special Comptroller’s Report, p. 8 (2016)).

31.       Indeed, the fundamental values of the State of Israel as a Jewish and democratic state instruct us to act decisively and uncompromisingly to eradicate racism in our midst. This message also sheds light on the danger that must be determined in this regard for the purpose of the probability test, if it be found that it should be applied to the causes for disqualification under sec. 7A of the Basic Law. In my view, the inherent danger of racist discourse derives from the fact that such discourse feeds and sets the stage for actions intended to realize the racist ideology, which in turn motivate and reinforce continued racist discourse. As Justice D. Beinisch stated in the Tibi case: “‘Racism’ in its ‘nuclear’ sense, comprises, by its very nature, a potential for danger whose probability is a real possibility” (ibid., p. 88). Indeed, racist discourse, particularly if it is systematic, significant, and prolonged, causes this societal disease to infiltrate, take root and spread. Therefore, it is necessary to send a clear, unambiguous message that inciteful racist discourse is illegitimate, particularly when expressed by a candidate for public office who shouts it from the rooftops. Such discourse must be left “outside the camp” in every civilized state, and all the more so in the Jewish state.

32.       The French-Jewish author and intellectual Albert Memmi, who was born in the Tunis ghetto in 1920, writes in the introduction to the Hebrew edition of his book Racism:

The Jewish people is always a minority, and therefore, like most of the world’s minorities, historically and socially exposed, and is therefore a very convenient target. (This is, incidentally, one of the justifications for Zionism: The need for Jews to cease to be a minority, at least in one place).

Perhaps today, things have already begun to change somewhat. The declarations of some statesmen and religious leaders […] have aroused the political conscience of the nations. All of these may cause us to believe that the hell that was the lot of the Jews in almost every place in the world will come to an end […] thanks to the existence of the State of Israel. However, we should not yet rejoice. Already at the end of the last World War, it was claimed that the horrors of the war made people allergic to racism; racist philosophies would completely perish. But our hope was too rash. Nowadays, there are people who once again dare to be racist, and yet again we see the writings on the wall that call for the expulsion of the Jews, whose citizenship again is put in question, and the stage is once more set for their humiliation. We must tirelessly return to the struggle and not stop, perhaps forever (Albert Memmi, Racism, 8 (1988) (hereinafter: Memmi).

            If, as Memmi states, we Jews are obligated to spearhead the ongoing, uncompromising struggle against racism – of which antisemitism is one of the oldest and most severe examples – we must be worthy of leading that fight, and we must expunge the dangerous disease of racism from our midst in the sovereign State of Israel.  This is a long fight that requires perseverance, and as Memmi warns: “We are all fertile ground for absorbing and germinating the seeds of racism if we let down our guard even for a moment” (ibid., p. 41).

            And now from the general to the specific.

 

The background for addressing the matters of Ben Ari and Ben Gvir

33.       The main claim against Ben Ari and Ben Gvir is, as noted, that they view themselves as the successors of Rabbi Meir Khane and of the ideology of the Kach list that he headed. As may be recalled, that list was disqualified from standing for election to the Knesset (see the second Neiman case), and other lists that presented themselves as its successors have also been barred from running for the Knesset in the past (see: the Kach case; the Movshovich case). It should also be noted that already in 1984, prior to the constitutional grounding of the causes for disqualification in sec. 7A of the Basic Law, the Court noted in the first Neiman case that the Kach list “propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel”. It should also be noted that in 1994, the Israeli Government decided to declare the Kach movement, the Kahana Chai movement, and associates and derivatives of those movements, as terrorist organizations under the Prevention of Terror Ordinance, and proceedings instituted in that regard were dismissed (see: HCJ 547/98 Federman v. Government of Israel [16]; and see: AAA 8342/02 Ben Gvir v. Commissioner of Police [17]).

34.       The Tibi case examined, inter alia, the question of barring Marzel from standing for election on the Herut list after the Committee decided to reject a request for his disqualification. It was argued that he supported the ideology of the Kach movement, and the Court was willing to assume that the evidentiary foundation presented did, indeed, ground Marzel’s involvement in the activities of that movement prior to the elections. However, in dismissing the appeal, the Court majority saw fit to grant significant weight to the fact that Marzel had declared that he had changed his views, and in the words of the judgment: “Mr. Marzel himself declares that he has recanted his prior views, and that he now seeks to act only in accordance with the law. He accepts the principals of democracy. He disavows the path expressed in the broad statements of Kach. He does not support violent actions” (the Tibi case, p. 60). Against that background, the Court dismissed the appeal in the Tibi case in regard to the disqualification of Marzel, although it had reservations as to the sincerity of his declarations.

35.       Ben Ari served in the 18^th Knesset as a member of the Ihud Leumi faction, and Ben Ari and Ben Gvir ran on the Otzma LeYisrael list in the elections for the 19^th Knesset in 2013. A request to bar the list from the elections was denied by the Central Elections Committee, but the list did not meet the electoral threshold. In the list’s election campaign for the 19^th Knesset, posters were used that displayed the word “loyalty” in Arabic, and beneath it the phrase: “There are no rights without obligations”. The campaign was barred by the chair of the Elections Committee Justice E. Rubinstein, who ruled that it bore a racist message that was intended to portray the Arab community as disloyal to Israel. Prior to the elections for the 20^th Knesset in 2015, the list changed its name from to Otzma Yehudit, and ran as part of the Yahad list, led by MK Eli Yishai. Leading up to the elections, the question of Marzel’s participation in that list arose again, after the Elections Committee decided to disqualify him. In a majority decision, the Court ruled that the disqualification decision should not be approved. It was noted that while Marzel came very close to the point of disqualification from participation in the elections, nevertheless, the claims by those who requested his disqualification were largely based upon newspaper reports and information obtained from the internet of low probative value, which were met by Marzel’s denial. The Court noted that Marzel “explained a significant part of the evidence submitted in his regard, and special weight should be given to his declarations in this matter […] These explanations cast doubt upon incitement to racism being a primary objective of Marzel’s activity” (emphasis original; ibid., para. 34). Marzel, Ben Ari and Ben Gvir did not serve in the 20^th Knesset, as the Yahad list did not pass the electoral threshold.

36.       Did the Appellants succeed in presenting evidence in the matter of Ben Ari and Ben Gvir that establishes a cause for disqualification against either of them from running as candidates for the 20^th Knesset by reason of incitement to racism? Given our approach that particular care should be taken, and that ordering that a list or candidate be barred from participating in the elections should be reserved only for extreme cases, we found that the evidence presented in the matter of Ben Gvir is insufficient for establishing a cause for disqualification, as noted, even under sec. 7A(a)(1) as argued by the Appellants. As opposed to this, the majority of the Court was of the opinion that the evidence presented justifies the disqualification of Ben Ari on the grounds of incitement to racism under sec. 7A(a)(2) of Basic Law: The Knesset.

 

Ben Ari

37.       In his arguments, the Attorney General referred to a very long list of evidence, focusing upon evidence from the period since the beginning of 2017, and emphasizing statements and actions by Ben Ari over the course of the year preceding the elections. This evidence includes statements by Ben Ari, in his own voice, in various film clips, that, as the Attorney General argues, present an unambiguous, clear and persuasive picture of incitement to racism against the Arab population in its entirety. We are concerned with a very detailed evidentiary foundation that comprises some 40 items in regard to statements and actions by Ben Ari. After reviewing that evidence and examining Ben Ari’s affidavit and statements before the Elections Committee, as well as his response to the appeal, his oral arguments before us, and the supplementary pleadings that he submitted, we are of the opinion that the arguments presented on Ben Ari’s behalf do not provide an explanation that would remove his actions and statements from the scope of incitement to racism that raises a cause of disqualification under sec. 7A(A)(2) of the Basic Law.

38.       Below, we will address the main elements of the evidentiary foundation presented:

            In November 2017, Ben Ari spoke at the annual memorial ceremony for Rabbi Kahane, while wearing a sticker on his jacket lapel that read: “Rabbi Kahane was right”. In the course of his speech, Ben Ari was heard saying the following:

There are enemies, there is a Jew, there is a knife, so they slaughter. Because they are given an opportunity, they slaughter […] We’ll give them another hundred thousand dunams, and affirmative action, perhaps they will love us. In the end, yes, they love us, slaughtered […] Rabbi Kahane taught us – there is no coexistence with them. There is no coexistence with them! (emphasis added).

            Further on, Ben Ari was heard referring to Bedouin citizens, stating:

We of Otzma Yehudit came out with a plan called Immigration and Building, Emigration and Peace […] After immigration and building, we will fulfil what God said […] Cast out that slave-woman, because whoever wants money will get money, whoever wants a bus will get a bus […] We will say and initiate here what has to be done so that we will wake up in the morning to a Jewish state […] The Bedouins have to be dealt with, but in the countries of origin. Return the land of the Negev to the Jewish people (emphasis added).

            Another piece of evidence presented by the Appellants is a video that Ben Ari posted on the Facebook page “Otzma Yehudit with Michael Ben Ari” (hereinafter: the Facebook page) on May 20, 2018. In the film, Ben Ari is seen giving a speech and saying the following:

The Arabs in Haifa are in no way different from the Arabs in Gaza […] In what are they different? In that here they are enemies from within […] here they carry out a war against us within the state […] it’s called a “fifth column” […] this dog should be called by its name, they are our enemies, they want to destroy us, there are, of course, loyal Arabs, but they can be counted as something like a percent or less than a percent, to our great despair, the overwhelming majority are full partners with their brothers in Gaza […] The Arab enemy has to be told that it’s one or the other, either you are loyal to the state or you should go to Syria […] There is no coexistence with them, they want to destroy us, that is their objective, that is their goal […] This is the fifth column here (emphasis added).

            According to Ben Ari, this was said following demonstrations in Haifa in support of the residents of Gaza “against the background of the balloon terror in the south of the country”. An examination of the Facebook page on April 17, 2019, shows that the video garnered 21,000 views, hundreds of “likes”, and additional hundreds of comments and shares.

39.       In July 2018, Ben Ari posted another video on his Facebook page, in which he is heard saying the following:

Do you know that the Bedouin marry Arab women from Gaza, from Hebron, who all come here. They get national insurance, they give birth in hospitals at our expense, their children later get every benefit at our expense […] they even serve in the army! These enemies the Bedouin serve in the army, let me repeat what I am saying – the enemy Bedouin serve in the army! They are seduced by money. I know from firsthand sources, from those who serve with them – they don’t trust them for a minute. There is an agenda that if they serve in the army, they will be loyal to us. No, they are not loyal to us! (emphasis added).

            This video received some 4,800 views and many comments.

            About a month later, Ben Ari posted another video on the Facebook page “Otzma Yehudit with Michael Ben Ari”, in which he appears saying, among other things:

First, we have to change the equation that anyone who dares to speak against a Jew doesn’t live. He doesn’t live! We don’t expel him, don’t take away his citizenship. He doesn’t live! A firing squad kills him, he is done away with, the way Arabs understand. That’s their language […] Tell me racism, racist? Whoever says that they are loyal underestimates them. “What? An Arab just wants to eat, just wants to make a living” – that’s not true, […] An Arab has nationalistic ambitions, he screams them, he shouts about them, he is ready to die for them (emphasis added).

            Ben Ari explained that this was said “against the background of the conduct in regard to Gaza and the solution that should be implemented against it”. This clip also received 9,300 views and hundreds of “likes”, comments and shares.

            In another video from the same month, Ben Ari is heard saying, among other things:

Over the last hours, in Tel Aviv, in the center of Tel Aviv […] our staunchest enemy has been arriving, and that is the internal enemy, the internal enemy, the enemy that we want to ignore, the enemy we want to hide our heads in the sand and not see, the enemy of Israeli Arabs (emphasis added).

            Ben Ari explained that this was said against the background of a demonstration by Arabs and Jews against what is called the “Nation-State Law” (Basic Law: Israel – the Nation State of the Jewish People) (hereinafter: The Nation-State Law)) in which PLO flags were waved and in which there were calls for the liberation of Palestine. He further explained that he was referring to Arabs who are not loyal to the State of Israel and who want to eradicate its Jewish character.

40.       After about a month, on Sept. 16, 2018, immediately following the stabbing attack at the Gush Etzion junction in which the late Ari Fuld was murdered, Ben Ari uploaded another video clip to his Facebook page, in which he states, among other things, the following:

[…] They murder because they have work. They murder because they want to inherit this land […] If there are infiltrators, it is the Arab enemy […] You need Shlomo Neeman [head of the Gush Etzion regional council] to ask all the business owners to fire today the terrorist of tomorrow. It is your responsibility, stop employing the murderers! Don’t employ these murderers! They get money from us and also come to murder us […] They murder us whenever they have the chance. The conclusion is that there is no coexistence. Look at the Arabs! Do they coexist amongst themselves? Every day in the news, murder in Rahat, murder in Reineh, murder in Umm al Fahm, attempted murder in Lod, murder in Jaffa. First of all, when speaking of coexistence, Rabbi Kahane would always say, let’s see the Arabs coexist amongst themselves (emphasis added).

            The clip received some 7,300 views, and hundreds of “likes”, comments and shares.

            At the end of November 2018, Ben Ari referred to the Arabs of the city of Lod in another video, this time on his Twitter account, accompanied by the caption: “The Arab conqueror of Lod continues to rage even today: The State of Israel is being conquered from within, Israel needs Otzma Yehudit!” In another video clip published on his Facebook page shortly after, Ben Ari referred to the members of the Lod municipal council as the “Arab enemy”. At the end of December 2018, Ben Ari published a clip on his Facebook page titled “Now in Afula Illit, a meeting with Otzma Yehudit loyalists”. In the clip, Ben Ari is seen conversing with a group of residents and stating as follows:

They wanted to bring you a clan of enemies into your neighborhood […] The State of Israel is being conquered from within, they are determined to conquer us from within […] By means of the word equality, the enemy will destroy us […] What is happening here is happening in Dimona, is happening in Lod. Lod is already a completely conquered city. But Afula? This criminal who opened the center for the enemy in the name of equal rights […] If, with the help of God, we enter the coalition, the first thing that we will do is the complete revocation of this thing called affirmative action. Do you understand that you are second class citizens because you are not Arabs? […] Most of them are willing to give up everything as long as they slaughter us. And what I am saying is not racism because, to my regret, it is the reality (emphasis added).

            Further on in the clip, Ben Ari is heard referring to the murder of the late Sheli Dadon, which occurred in 2014, saying as follows:

Did anyone ever hold a discussion of their character? On their treasonous character? […] The moment you give here, you give him affirmative action, you give him more work, he will raise a family here. His children will also be here, his children, fewer of my children will be here, and so […] I need a work plan. I need a work plan now a work a plan. […] This is not racism, it is fact, Arabs are the most migrant people in the world, they aren’t tied to any land […] That’s why they came here. Because there is work. […] One of the first things, our first condition for any discussions about a coalition, with the help of God, that they will discuss with us, is – revoking affirmative action (emphasis added).

41.       Some two months prior to the elections for the 21^st Knesset, on Feb. 8, 2019, shortly after the murder of the late Ori Ansbacher by a Palestinian terrorist, Ben Ari uploaded another video clip to his Facebook page in which he stated, among other things, the following:

There is a murderous people here, a murderous nation. We owe the revenge, and the revenge is Otzma Yehudit […] Only the revenge of Otzma Yehudit in the Knesset […] They want to destroy us, they are looking for our neck. […] They want to slaughter us […] The revenge will come when Otzma Yehudit will be in the Knesset with twenty mandates. When we will be there, they will see that we are not playing with them like Lieberman. They will find themselves in their countries of origin, and the village they came from will become an airport. To fly them to their countries of origin (emphasis added).

            An examination of the Facebook page shows that the clip received some 20,000 views. In another video clip that Ben Ari posted the same day, he is heard saying, among other things,: “They are looking for our neck, looking for our daughters […] anyone who talks to you about coexistence is inviting the next murder […] we have to send our enemies back to where they came from […] our enemies, these murderers, we will send them to murder in Syria, in Lebanon, in Iran in Turkey” (emphasis added). This clip, which was, as noted, published close to the elections, received some 32,000 views, and hundreds of “likes”, comments and shares.

42.       The evidence presented, the main part of which we described above, indeed paints a clear, unambiguous, persuasive picture in which Ben Ari systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public. We are concerned with significant evidence that comprises disparaging expressions of extreme severity that continued over a period of some two years until very close to the elections for the 21^st Knesset, and Ben Ari is heard saying these things in his own voice. This fact is of high probative value (the second Zoabi case). Ben Ari attributes negative characteristics to practically all of the Israeli Arab public, and calls them “murderers”, a “fifth column”, “enemies”, and of “treasonous character”. We are not concerned with a “slip of the tongue” in a moment of anger, but rather with a continuous, consistent series of statements that express hatred and scorn for the Arab population in its entirety as one that appears to understand only violence, with which one cannot coexist, and which must, therefore, be expelled, and as one that receives various social benefits “at our expense”. As noted in the Appellants’ response to Ben Ari’s supplementary pleadings, these publications were not removed. Ben Ari surpassed himself in comparing the Israeli Arab citizens of Haifa to dogs, stating that “the dog should be called by its name”. The use of dehumanization and attributing animalistic traits to people is known to be one of the most degrading propaganda mechanisms employed by racist regimes in order to mark a population as “inferior” and “sub-human”, and it endangers and seriously harms the dignity of the individuals who are members of that group as human beings.

            Ben Ari’s statements, and the not insignificant exposure they receive on social media, reflect the racist political program he espouses and which he intends to realize as a member of the Knesset. Certain statements that expressly call for violence are of particular severity (see, in this regard, his statements in the video clip published in August 2018, according to which “anyone who dares to speak against a Jew doesn’t live. He doesn’t live […] A firing squad kills him, he is done away with, the way Arabs understand. That’s their language”). It is important to note that publications on the social media platforms that Ben Ari chose to use by uploading recordings in which he is heard speaking in his own voice have great influential potential, as the social networks provide candidates for the Knesset quick channels of communication  to many communities without any journalistic mediation. In this manner, the social networks have, to a significant extent, replaced the historic “town square”, and serve as a platform for exchanging views, disseminating ideas, and garnering support among broad, diverse communities. The great accessibility of social networks, as well as the quick and effective dissemination of opinions and ideas by means of the digital platforms, can serve as a very effective means for spreading racist ideas and expedite the dissemination of those ideas (see, in this regard, in general: Yotam Rosner, The Role of Social Media in the Radicalization of Young People in the West, National Security in a “Liquid” World, 131, 135-137 (Institute for National Security Studies, 2019) (Hebrew)).

43.       In addition to the specific explanations that Ben Ari gave for the above publications, he further explained that he is not a racist, and that what he said was directed only at that defined segment of the population that is “enemy”, which includes anyone who is not loyal to the state, and in his own words: “The definition of the enemy is not made on a purely ethno-national basis, but on a political one. Anyone who identifies with the political objectives of the Arab national movement identifies himself as an enemy”. According to him, he does not refer to the Arab public as a whole, and any Arab who is “loyal to Israel” has a right to be a citizen. As opposed to that, whoever “is not loyal to the State of Israel as the nation state of the Jewish people […] should find his place outside of the state”. Ben Ari further clarified that the distinguishing characteristic, according to his approach, is “the relationship to the Zionist enterprise and to the State of Israel as the state of the Jewish people”. He further argued that the quotes attributed to him were fragmented and tendentious and explained that in saying that the Arab population of Israel is not loyal, he meant that he has not met “many loyal Arabs” (emphasis added). In the hearing before us, Ben Ari’s attorney noted: “In my estimation, there is an absolute majority that is not loyal” (Transcript of the hearing, p. 22, line 14), and in this regard, Ben Ari clarified in his supplementary pleadings that his statement that there is an absolute identity between ethno-national origin and loyalty was made in opposition to a statement that he attributed to former minister Naftali Bennet according to which 99% of Israeli Arabs are loyal to the state.

            Ben Ari apologized for his statements in regard to Bedouin soldiers. He pointed out that he “apologizes for them before those loyal soldiers who may have been hurt” and explained that his intention was “unequivocally only to those sons of women who came from the areas of the Palestinian Authority and Gaza”, and that he does not think that “all of the Bedouin population is disloyal” (paras. 32-33 of his affidavit). In the hearing before us, Ben Ari even emphasized that “if it sounds as if I am against the Bedouin, God forbid. If there is loyalty, there is loyalty, and I respect and honor that (hearing transcript, p. 29, lines 16-17). Ben Ari asked to clarify that his statement of Sept. 16, 2018, following the murder of Ori Fuld, in which he called to “stop employing the murderers” as referring only to terrorists, the words do not, of course, refer to all Arabs […] [only] to the security measures that should be adopted in regard to employing Arabs from the Palestinian Authority”. In his response to the appeal, Ben Ari explained that his statements in the Afula meeting were made “against the background of the murder of a resident of my community Dadon”, and in his supplemental pleadings, Ben Ari added that even if what was said in that meeting “grate upon the ear, they do not rise to the level of a ‘critical mass’”. In his affidavit, Ben Ari emphasized that “I am not saying that all Arabs are like that [of a murderous, treasonous character], or that this character derives from ethno-national origins. But this murderous violence is characteristic of the national struggle of the Arab national movement since the beginning of the 20^th century” (para. 47 of his affidavit). In the hearing before us, Ben Ari added another reason for his statements, noting that his words in regard to the sale of apartments to Arabs in Afula should not be understood as racial discrimination, and he referred in this regard to Amendment no. 8 of 2011 to the Cooperative Societies Ordinance in the matter of the considerations that may be taken into account by an admissions committee of a residential community (hereinafter: the Admissions Committee Law). Ben Ari explained what he said after the murder of Ori Ansbacher in a supplementary notice in which he explained that he “referred to the murder, and that was its only context”. In his affidavit, he added that his words might sound inclusive in regard to people on the basis of ethno-national origin, but that his intention was “to those who, from an Arab national position, seek to murder Jews against a nationalistic background, and as part of what they see as a national struggle, and who support and identify with those acts (para. 50 of the affidavit). In the hearing before us, Ben Ari’s attorney added that “there is never any justification for harming individuals on the basis of the nationality” (Transcript, p. 15, line 6), and that Ben Ari’s statements about the Arab public were always made in the context of a specific event” (ibid., line 12).

            Lastly, Ben Ari sought to emphasize that presenting broad positions is not exclusive to him but is rather a common practice of candidates for the Knesset, and even of serving members of the Knesset.

44.       I examined Ben Ari’s arguments and explanations and I do not see them as sufficient to change my conclusion. While Ben Ari repeatedly states that he is not a racist, unfortunately, his actions and statements, which I have summarized above, are diametrically opposed to that declaration. The question I pondered was what positive weight should be afforded to the fact that Ben Ari already served as a member of the Knesset (in 2009 - 2013). This fact does, indeed, constitute a consideration in his favor, but it is of limited weight inasmuch as Ben Ari worked toward the advancement of his racist ideology even in that period, and tearing the New Testament to shreds and throwing it in the waste basket in the Knesset was just one example of that (for other actions and expressions, see paras. 79-91 of the notice of appeal). In any case, as the Attorney General emphasized in presenting his position, the evidentiary foundation from the recent past, and primarily from the year preceding the elections, shows that a “critical mass” of evidence has amassed that unambiguously, clearly, and persuasively testifies to systematic incitement to racism by Ben Ari. The summary of the case law presented above shows that the Court has attributed significance and weight to explanations and clarifications presented by the candidate, to which the decisions in the matter of Marzel testify (the opinion of President A. Barak in the Tibi case, p. 60, and that of Justice I. Englard at p. 66; the second Zoabi case, para. 34, and as opposed to that, see the dissenting opinion of Deputy President E. Rubinstein at para. 103). However, in the instant case, the explanations provided by Ben Ari are not persuasive and pale before the enormity of the racist statements that he repeated again and again in his own voice, and which he preached in public at rallies in which he participated and on social networks. Other than an apology, that was only partial, in the matter of Bedouin soldiers, Ben Ari did not apologize for his statements and did not retract them. He tried to give his words a post facto interpretation, but that, as stated, was not persuasive because it is not consistent with the meaning and natural context of what was said. Thus, for example, Ben Ari tried to explain that he does not speak about the Israeli Arab public in general but only of those who are “enemies”, but the recordings repeatedly show that the reference is to the entire Arab public, or at the very least, to its overwhelming majority – 99% of that public – as disloyal to the state. Ben Ari himself notes in one of those recordings that he has not met Arabs who are loyal to the state (see, for example, the video clip of Ben Ari from Nov. 7, 2017, from 6:30). Another explanation proposed by Ben Ari in regard to some of his statements was that they were made immediately after terrorist incidents and attacks against Israelis. The pain, the anger, and even the will for revenge aroused at such times is understandable. However, it is important to bear in mind that fear and a sense of threat have always been the fuel that fires racist ideologies, and one must, therefore, take care not to harness understandably harsh feelings that arise at times of distress and pain and exploit them to advance such ideologies. The explanations that Ben Ari presented in an attempt to equate the Admissions Committee Law – with all the clear limitations it establishes – and the things he said in regard to the sale of apartments to Arabs in Afula have no place here inasmuch as the two cannot be compared (and compare: LCA 6709/98 Attorney General v. Moledet [18]) (hereinafter: the Moledet case)).

45.       In summation, this chapter states that the Court’s approach that the causes for disqualification under sec. 7A of Basic Law: The Knesset are to be narrowly construed and exercised in the most extreme cases, was and remains the starting point for every discussion of these causes. However, we are persuaded that the broad, up-to-date evidentiary foundation presented in the instant case gives rise to a cause that disqualifies Ben Ari from standing as a candidate in the elections for the 21^st Knesset due to incitement to racism under sec. 7A(a)(2) of the Basic Law. Given this conclusion, there is no need to examine the additional cause for disqualification under sec. 7A(a)(1) of the Basic Law.

            Indeed, it is not always easy to draw the line separating racial incitement from the expression of an opinion – as severe and harsh as it may be – that is entitled to protection under the fundamental right to freedom of expression in general, and to freedom of political speech in particular. This is particularly the case when the former also concerns the right to vote and to be elected. Nevertheless, in the instant case, and given the evidentiary foundation we presented, it is absolutely clear that Ben Ari’s statements crossed the line, and thus the conclusion reached. It would be appropriate to conclude this chapter with another quote from Memmi’s book Racism:

One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask […] To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?) […] The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animality to humanity (ibid., p. 116).

 

Ben Gvir

46.       In the matter of Ben Gvir, the Appellants presented a line of evidence, including evidence concerning criminal proceedings against him that, in part, concerned racist publications and support for the Kach movement that was declared a terrorist organization. However, the overwhelming majority of the evidence presented concerned acts and statements form many years ago, part from as long ago as the 1990s, and only a small part concerned the last few years. After examining the arguments raised by the Appellants and those of Ben Gvir, we concluded, as noted, that the evidence presented is not sufficient to ground a cause for disqualification from standing as a candidate in the elections for the 21^st Knesset, given the rule that we addressed above in regard to the strict evidentiary threshold required to substantiate disqualification under sec. 7A of the Basic Law.

47.       The up-to-date evidence to which the Appellants and the Attorney General referred in regard to Ben Gvir should not be taken lightly. It includes statements he made in November 2017 at a memorial service for Rabbi Kahane, whose praises he also enumerated in an interview on Feb. 21, 2019. Ben Gvir made similar statements in a television interview in Nov. 2018 that he published on his Facebook page at that time. Those statements there were certainly very harsh and troubling, and there is substance to the Attorney General’s opinion that they come dangerously close to the line that would bar him from running in the Knesset elections. In this regard, it would not be superfluous to return to the words of Justice M. Elon in the second Neiman case, in 1989, in regard to the Kach list and Rabbi Kahane’s ideology:

The content of the Kach platform and the purpose of its promoters and leaders, as reflected in the material presented to us, stand in blatant contrast to the world of Judaism – its ways and perspectives, to the past of the Jewish nation and its future aspirations. They contradict absolutely the fundamental principles of human and national morality, the Declaration of Independence of the State of Israel, and the very foundations of present-day enlightened democracies. They come to transplant in the Jewish State notions and deeds of the most decadent of nations. This phenomenon should cause grave concern among the people who dwell in Zion. This court is charged with the preservation of the law and its interpretation, and the duty of inculcating the values of Judaism and civilization, of the dignity of man and the equality of all who are created in the divine image, rests primarily upon those whom the legislature and the executive branch have chosen for the task. When, however, such a seriously dangerous phenomenon is brought to our attention, we may not refrain from sounding the alarm against the ruinous effects of its possible spread upon the character, image, and future of the Jewish State. The remedy lies, in the first place, in a reassessment of the ways of educators and pupils alike, in all walks of our society (ibid., p. 302).

            These trenchant remarks are applicable here, as well. However, Ben Gvir, who was admitted to the bar in 2012, took pains to emphasize and explain that while he is in favor of “fighting against the enemies and against any who seek to erase the state, harm its Jewish character, and destroy it (whether such actor is Jewish or whether Arab)”, he “opposes acting in any violent or unlawful manner” (para. 43 of Ben Gvir’s affidavit). He further noted that over the last years, he has changed his ways and he acts by legal means and initiates legal proceedings where he deems appropriate. These explanations bear weight and should be granted significance, and this, together with the current evidentiary foundation presented in his matter, which, as noted, does not rise to the level of a “critical mass” under the strict criteria established in this regard in the case law, led us to the conclusion that the appeal in the matter of Ben Gvir, on both heads, should be dismissed.

 

EA 1876/19 Ra’am-Balad List v. Central Elections Committee for the 21^st Knesset

48.       The Ra’am-Balad list is composed of two parties – Ra’am and Balad – and two requests for its disqualification were filed by the Likud and MK David Biton, and by Ben Ari and Ben Gvir. The disqualification requests were based upon the cause in sec. 7A(a)(1) of the Basic Law – negation of the existence of the State of Israel as a Jewish state, and sec. 7A(a)(3) of the Basic Law – support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The requesting parties focused primarily on the activities of members of Balad, and it was argued that they oppose the Jewish people’s right to self-determination in the State of Israel and act to negate the core characteristics of Israel as a Jewish state. It was further argued that members of the list support the Hezbollah and Hamas terrorist organizations and violent acts against the police and IDF soldiers. The Elections Committee decided by a majority of 17 for and 10 against to disqualify the Ra’am-Balad list from participating in the elections for the 21^st Knesset, and thus the current appeal.

 

Arguments of the Parties

49.       Ra’am-Balad argued that the Elections Committee’s decision should be annulled, and emphasized that most of the evidence presented in its regard was already adjudged and examined in prior proceedings against the Balad list or its members, including the evidence concerning their support for the idea of “a state of all its citizens”, and the Court held that the evidence did not substantiate a cause for disqualification. It was further argued that the Committee’s decision leads to a problematic result that also disqualifies the members of the Ra’am party on the list from standing for election even though no significant evidence was produced against them that would justify their disqualification. According to Ra’am-Balad, the Committee reached its decision without any material debate, and it ignored the decisions of this Court and the opinion of the Attorney General; the evidence against it does not relate to actions or activity that substantiate a cause for disqualification; and the evidentiary foundation rests upon articles form the internet of low probative weight and whose content was denied by the members of the list. Ra’am-Balad further argued that due to its political composition, the Elections Committee is not authorized to rule upon the causes for disqualification under sec. 7A of the Basic Law, and that the legal arrangement that grants it that authority is disproportionate and infringes the principle of equality of the elections as established in sec. 4 of the Basic Law, and the right to vote and to be elected.

50.       The Attorney General was of the opinion that the appeal of Ra’am-Balad should be granted and noted that the disqualification requests were indeed largely founded upon evidence from prior to the elections for the 20^th Knesset, and part of it had already been examined in prior proceedings before this Court. Whereas, it is argued, the new evidence submitted relies largely upon articles form the internet that were denied by the members of the list and that are of low probative value. It was further emphasized that most of the evidence pertains to persons who are no longer on the list, among them: Basel Ghattas (hereinafter: Ghattas) and Said Naffaa, or who are in a unrealistic slot on the list, like Hanin Zoabi and Jamal Zahalka (hereinafter: Zahalka), and are not relevant to the members of the list and its new candidates who are in realistic slots. In all that relates to the cause of support for armed struggle of a terrorist organization, the Attorney General was of the opinion that significant weight should be accorded to the affidavits submitted by the representatives of the list which note that they reject violence and that they never called for its use. As for the cause of negation of the existence of the State of Israel as a Jewish state, the Attorney General noted that the consistent position of the case law of this Court in regard to Balad and its members is that there is no cause for disqualifying them from participating in the election for the claims have been raised once again in this proceeding. However, the Attorney General, without deciding the issue, explained that were the Balad party running independently for the 21^st Knesset, there would be reason to carefully consider its disqualification in view of the Basic Law: A State of all its Citizens Bill submitted to the 20^th Knesset by members of Knesset from the Balad party, and due to the content of that bill. But the Attorney General added that since the requests refer to the disqualification of the Ra’am-Balad list, and because the law does not allow for disqualifying half of a list, there is some difficulty in disqualifying the entire list due to the actions of members of the Balad list, who for the most part are not, as noted, candidates in realistic slots on the list, while no significant arguments were raised in regard to the Ra’am party and its members. On the constitutional level, in regard to the matter of the Elections Committee’s authority to address the causes for disqualification under sec. 7A of the Basic Law, the Attorney General argued, inter alia, that given the time constraints established in the Elections Law for deciding upon an appeal, the issues should not be taken up in the framework of the current proceedings.

51.       Respondents 2-3, who submitted the requests for disqualification, relied upon the decision of the Elections Committee and argued for dismissal of the appeal. In their view, the fact that the Ra’am-Balad list includes new candidates does not alter the fact that the ideology of the members of the Balad list negates the character of the State of Israel as a Jewish state and the fact that members of the party support terrorist groups like Hezbollah and Hamas. The Knesset, which was joined as a Respondent to the appeal due to the constitutional arguments, was of the opinion that these arguments should be dismissed. It emphasized that the claim of lack of authority was not raised before the Elections Committee, that it is being raised long after the said authority was bestowed upon the Committee by law, and like the Attorney General, the Knesset added that the elections proceedings are not appropriate for examining this issue.

 

Negation of the Existence of the State of Israel as a Jewish State

52.       The starting point for examining the evidentiary foundations presented by the Plaintiffs in regard to the disqualification of Ra’am-Balad on the cause of negation of the existence of the State of Israel as a Jewish state is grounded in the criteria established in the case law, which we surveyed at length above. These criteria were addressed and even applied in the past in regard to the Balad list and its platform (see the Tibi case and the Balad case), and those cases addressed, inter alia, the question whether a party that calls for the realization of the principle of “a state of all its citizens” is disqualified from standing for election to the Knesset. In the Tibi case, the Court answered in the negative, and held that calling for the realization of that principle does not necessarily imply the negation of the State of Israel as a Jewish state. The Court held that as long as that call is intended to guarantee equality among citizens, it should not be interpreted to be a call that negates the existence of the State of Israel as a Jewish state. As opposed to that, “if the purpose of Israel being a ‘state of all its citizens’ is intended to mean more than that, and it seeks to undermine the rationale for the creation of the state and its character as the State of Israel as the state of the Jewish people, then that undercuts the nuclear, minimal characteristics that characterize the State of Israel as a Jewish State” (the Tibi case, pp. 22-23, 41).

53.       In the Tibi case, the Court concluded that, despite the fact that Balad’s platform expressly called for realizing the principle of “a state of all its citizens”, and despite the additional evidence presented in open court and in camera, taken in its entirety, what was presented did not ground a “critical mass” of persuasive, clear and unambiguous evidence that would justify the disqualification of Balad for the cause argued, nor the disqualification of Bishara – then head of the list – whose disqualification was requested in that same proceeding. It would not be superfluous to note that most of the evidence presented in that matter in regard to Balad concerned actions and statements by Bishara. It was argued in regard to Bishara that, inter alia, in various events and party conferences he expressed himself in a manner that reflected a view according to which Jews do not have a right to self-determination. It was further argued that Bishara supported the approach that recognized the right of return of Arabs to Israel and a struggle against Zionism, and that he even tabled a bill for the abolition of the status of various Zionist institutions.

54.       After examining all of that evidence, the Court concluded in the Tibi case that even though Bishara’s objectives are a dominant objective of his activity and not merely a theoretical concept but rather an objective with political potential that he had put into practice, his actions did not negate the minimal, nuclear definition of the State of Israel as a Jewish state. It was held that the Court was not presented with persuasive, clear and unambiguous evidence against Bishara in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law, and consequently, not against the Balad list. That was so inasmuch as Bishara recognized the right of every Jew to immigrate to Israel and did not argue that the Law of Return, 5710-1950 (hereinafter: The Law of Return) should be revoked, did not deny the centrality of Hebrew as the language of the state, along with Arabic as an official language, and did not oppose Israel’s holidays and symbols, as long as the cultural and religious rights of the Arab minority are recognized.

55.       As noted, the Tibi case concerned the elections for the 16^th Knesset, and some eight years later, in the Balad case, the Court addressed disqualification proceedings filed against the Balad party in anticipation of the elections for the 18^th Knesset. That matter concerned the decisions of the Elections Committee to disqualify the Balad list, as well as the Ra’am-Ta’al list that also sought to contend in those elections. The causes for which the Elections Committee decided to disqualify the Balad list were, as in the present case, the causes under secs. 7A(a)(1) and (3) of the Basic Law. At that point, Bishara no longer headed the list. He had fled the country, and it was claimed that the reason was that a criminal investigation was being conducted against him for suspected involvement in security offenses (the Balad case, para. 9). Inter alia, the evidence presented in that matter to ground the cause of negation of the existence of the State of Israel as a Jewish state included Balad’s platform, which was published on its internet site, and an article by Zahalka, who was then the party leader, which described the party’s vision as striving for a State of Israel as “a state of all its citizens”. In addition, public statements of party members made in various situations, as well as articles from which, it was argued, one could discern an expression of support of the Balad members for its founder Bishara even after his flight from Israel, were presented. The Court granted Balad’s appeal and held that there was no cause for disqualification from contending in the elections for the 18^th Knesset. The Court’s decision rested, inter alia, upon the opinion of the Attorney General at the time, who noted that the evidence presented against Balad, taken in its entirety, was inferior to the entirety of the evidence presented against that party in the Tibi case. The Court held:

After examining all of the evidence presented to us, and bearing in mind the criteria and principles outlined in the matter of Balad [the Tibi case], the entirety of the evidence presented to this Court in that matter and its concrete findings there in regard to them, we did not find that the disqualification requests that are the subject of this appeal in regard to Balad rest upon a sufficient evidentiary foundation to give rise to a cause for disqualifying the list from contending in the elections for the Israeli Knesset (ibid., para. 22).

            This conclusion reached by the Court in the Balad case concerns the two causes for disqualification advanced there. We will further address the additional cause under sec. 7A(a)(3) below.

56.       Another disqualification proceeding concerning the members of the Balad party was addressed in 2012 in the first Zoabi case, which examined the issue of the disqualification of Zoabi from standing for election for the 19^th Knesset on the Balad list. In that proceeding, the Court examined the evidence regarding Zoabi’s support for the principle of “a state of all its citizens”, and was of the opinion that the evidence presented no materially new or different grounds from what had been presented in the Tibi case and the Balad case that would justify a different conclusion. The Court arrived at a similar result some three years later in the second Zoabi case. In that matter, the Court examined, inter alia, whether statements in which Zoabi was heard saying “there was no justification for the establishing of the State of Israel from the start. Now that there are generations of Jews who were born in it, I want to live with them but not in a Jewish and racist state”. The Court also examined an article that reported on a demonstration in which Zoabi participate, entitled “Demonstration against the Crimes of the Occupation”, and a recording in which Zoabi is heard shouting insults at the police. The Court held that there were no grounds for disqualifying Zoabi’s candidacy in the elections. That was so because the desire for the establishment of a state of all its citizens and “striving for an end to the occupation does not necessarily mean a negation of the Jewish foundations of the State of Israel.”

57.       The current proceeding, in which the Ra’am-Balad list is appealing its disqualification by the Elections Committee from contending in the elections for the 21^st Knesset, is another link in the chain of similar proceedings on the same matter. In all that concerns the cause for disqualification under sec. 7A(a)(1) of the Basic Law, the evidence presented by the petitioners for disqualification includes various statement by members of Balad form the past and present, among them a quote from an interview conducted by Dr. Mtanes Shehadeh, chair of the Balad list, and number two on the Ra’am-Balad list (hereinafter: Shehadeh), in which he says, among other things, that Bishara was “an important activist in Balad’s leadership at the time, and contributed greatly to political discourse […] in Israel”, and is later quoted in that interview as saying that “the flag and national anthem do not represent us”. A report from the YNET website was also presented according to which MK Talab Abu Arar, who is a member of the list, and others met with the president of Turkey. Additional evidence presented concerns an interview with the former general secretary of Balad in which he called upon Israeli Arabs not to vote in the Knesset elections and to act for the realization of the principle of “a state of all its citizens”, as well as evidence concerning past activities of members of Balad, including statements by Zoabi from 2009 and past activities of Bishara.

            This evidence is not materially different from the evidence presented in the previous proceedings that we surveyed, which concerned proceedings for the disqualification of Balad and members of its list, as far as the cause of negation of the State of Israel as a Jewish state is concerned. Moreover, not only has most of the evidence presented in this proceeding been examined in previous proceedings and found insufficient in accordance with the criteria outlined for the said cause, but as noted, a not insignificant part of that evidence concerns persons who are no longer candidates on the Ra’am-Balad list for the elections for the 21^st Knesset, or are not candidates in realistic slots on that list. That being the case, we cannot accept the argument that the Ra’am-Balad list should be disqualified from running in the elections for the 21^st Knesset due to actions and statements attributed to Zoabi when she herself was not disqualified at the time in the first Zoabi case and the second Zoabi case for the same actions and statements, especially when she is located in the 118^th slot on the current list. The argument in regard to ongoing connections of some kind or another between members of the list and Bishara was argued in a general manner and does not suffice for changing the conclusion as to the insufficiency of the evidence presented. As for the majority of the candidates on the Ra’am-Balad list for the 21^st Knesset who hold realistic slots, with the exception of Shehadeh, no evidence at all was presented to ground the cause for disqualification, and as explained above, the evidence presented in regard to Shehadeh is based upon quotes from media interviews and reports on various internet websites whose probatory weight has already been held to be low (the second Zoabi case, para. 34), and Shehadeh has declared that his words were presented in a “distorted, misleading manner, and was accompanied by incorrect analysis” (para. 9 of the affidavit submitted by Shehadeh to the Elections Committee).

58.       The primary up-to-date evidence presented to us in this proceeding in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law is the Basic Law: A State of all its Citizens Bill, which members of Knesset from the Balad party sought to lay on the table in the 20^th Knesset. At the end of the day, that bill was not presented due to a decision by the Knesset presidium of June 4, 2018 not to approve its introduction, based upon the opinion of the Knesset’s legal advisor. A petition filed in this regard was rendered moot and dismissed in limine when it was decided to dissolve the 20^th Knesset (HCJ 4552/18 Zahalka v. Speaker of the Knesset [19]). The purpose clause of the bill established that it was intended to ground “the principle of the equal citizenship of every citizen, while recognizing the existence and the rights of the two national groups, Jewish and Arab, living within the borders of the state that are recognized by international law” in a Basic Law. The bill also redrafted the conditions for obtaining Israeli citizenship, such that obtaining citizenship by virtue of the principle of return would be annulled (see sec. 5 of the opinion of the Legal Advisor of the Knesset of June 3, 2018). In addition, new state symbols and a new anthem should be established in accordance with the principles set forth in the bill (on the significance of this provision as negating the principle according to which the “primary symbols” of the state should reflect the national rebirth of the Jewish people, see sec. 5 of the opinion of the Legal Advisor of the Knesset, and see what was stated in this regard in sec. 6 of the bill in regard to the status of the Hebrew language as the primary language of the state). If that were not enough, the petition filed by the members of Bald in the 20^th Knesset against the decision of the presidium to prevent laying the bill on the Knesset table explicitly stated that the said bill accorded with Balad’s party platform.

            It would seem undeniable that the said bill, in all its parts, expresses a negation of the most minimal, nuclear characteristics of the State of Israel as a Jewish state as the Court explained in the Tibi case. The fact that the step taken by the members of Balad in this regard was democratic – tabling a bill – does not lead to a different conclusion. This was indeed a significant action by the members of Knesset representing Balad in the 20^th Knesset attempting to realize – by means of a legislative bill – a political program and worldview that negates the existence of the State of Israel as a Jewish state. It would appear that Ra’am-Balad was aware of the significance of this evidence, but argued that it should not be given decisive weight in the current proceeding, inter alia, given the fact that it is only one piece of evidence (or at most two, if the petition constitutes a separate piece of evidence in this regard), and given the background for submitting the bill and that it was submitted in response to the legislative proceedings on the Nation State Law. These arguments attempt to minimize the significant weight of this evidence, and I agree with the position  of the Attorney General that had Balad run as an independent list comprising members of Knesset who had served in the 20^th Knesset and who presented the bill, and who now sought to stand for re-election to the 21^st Knesset, there would be grounds for seriously considering whether these two pieces of evidence show that Balad had crossed the divide delineated in the Tibi case that separates between espousing the principle of “a state of all its citizens” in order to achieve equality and seeking to negate the minimal, nuclear characteristics of the State of Israel as a Jewish state. If we were standing at that junction, we would also likely be required to consider the issue of the applicability of the probability test in applying the cause for disqualification under sec. 7A(a)(1) of the Basic Law, which was left for further consideration in the Tibi case and in the ensuing decisions. However, the list whose disqualification was requested is a joint list of Ra’am-Balad and we agree with the opinion of the Attorney General that his fact is significant for examining the causes for disqualification. In addition, it must be borne in mind in regard to the representatives of Balad on the list that none of those placed in realistic slots were among those who submitted the bill on Balad’s behalf. Moreover, in the affidavit he submitted to the Elections Committee, Shehadeh declared that he himself and all of Balad’s candidates for Knesset are committed to the principle of “a state of all its citizens” that is presented in the party’s platform as examined and approved in the Tibi case, the Balad case, and in the first and second Zoabi case (para. 2 of the affidavit). Given all of the above, and given the strict criteria outlined in the case law for the disqualification of a list from standing for election to the Knesset, we have concluded that there are no grounds for disqualifying the Ra’am-Balad list on the cause of negation of the existence of the State of Israel as a Jewish state.

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

59.       The Election Committee’s decision that “the Ra’am-Balad list is barred from participating in the elections for the 21^st Knesset” does not state whether the list’s disqualification is based upon both of the two causes in secs. 1A(a)1 and (3) of the Basic Law or only upon one of them. In the future, even if the Committee does not state the reasons for its decision, it may be appropriate that it at least note what cause grounded its decision on disqualification. In any event, for the purposes of this appeal, I will assume, as did the parties, that the disqualification rested upon both causes.

            The prevailing rule established that in order to prove that a list or a candidate seeking to stand for election supports armed struggle by an enemy state or a terrorist group, it must be shown that it is the primary objective of the list and that it actually works toward realizing it. In all of the past proceedings in the matter of both Balad and Ra’am, it was held that the evidence presented in this regard does not amount to a “critical mass” that would justify disqualifying either of the lists or any of candidates on those lists on the basis of the cause grounded in sec. 7A(a)(3) of the Basic law (EA 2600/99 Erlich v. Chair of the Central Elections Committee [20] (hereinafter: the Erlich case); the Tibi case; the first Zoabi case; the second Zoabi case). Those holdings bear consequences for the matter before us inasmuch as the evidence presented to ground the cause of support for armed struggle is immeasurably less than that presented in the above cases. The Petitioners for disqualification primarily based their arguments upon pictures of Shehadeh visiting a former security prisoner and upon quotes from an interview in which it is alleged that he refused to refer to Hamas as a terrorist organization and added that “any struggle against the occupation is a legitimate struggle”, and that he “is for a struggle against the occupation. People have a right to fight against the occupation. If there are people who are oppressed, they have a right to fight”. In addition, an interview with MK Abd Al Hakeem Haj Yahya, who holds the second slot in the Ra’am party, was presented in which he referred to an attack on the Temple Mount in July 2017 in which Israeli police were murdered. According to the petitioners for disqualification, other statements by members of the list in 2009 and 2011 demonstrate a support for terrorism. The petitioners for disqualification further added the fact that former Knesset members of Balad met with the families of terrorists who were killed while carrying out terrorist attacks; Zoabi’s participation in the “Mavi Marmara” flotilla; the meeting held by former Balad Knesset members with Bishara in 2014; and the conviction of former Balad Knesset member Ghattas for security offenses.

60.       We reviewed the above evidence, and we are not of the opinion that it constitutes a body of persuasive, clear and unambiguous evidence that shows that support for an armed struggle by a terrorist organization is a central, dominant purpose of the Ra’am-Balad list or of any of the parties that compose it. In addition, we do not think that evidence was presented that meets the evidentiary threshold for proving that this list acts for the realization of such an armed struggle in a real and consistent manner. This is an a fortiori conclusion given that the evidence presented in the prior proceedings addressed by this Court was far more significant than that presented before us, and it was nevertheless held that it was insufficient to ground a cause for disqualification under sec. 7A(a)(3) of the Basic Law. Moreover, a significant part of the evidence presented to us refers to persons who do not appear on the Ra’am-Balad list for the 21^st Knesset, and some of it was already examined in the previously noted cases. The petitioners for disqualification presented various statements by Shehadeh from which one might infer support for violent activity, but that is not the only possible interpretation and the doubt acts to the benefit of the conclusion that would permit the list to participate in the elections (the second Zoabi case, para. 73). In addition, weight should be given in this regard to the fact that Shehadeh made it explicitly clear in his affidavit that he does not support violent activity and that Balad’s approach is “democratic and employs legal means. We have never called for the use of violence, and none of the candidates on our current list have ever been convicted of any criminal offence”. It was further noted that statements expressing opposition to the Israeli policy in Judea and Samaria were examined by this Court in the past, and it was held that they do not, in and of themselves, give rise to a cause for disqualification (the second Zoabi case, para. 67).

61.       In conclusion, for the reasons stated above, I was of the opinion that we should grant the appeal in EA 1876/19, that the disqualification decision by the Elections Committee should be overturned, and we should order that the Ra’am-Balad list is not barred from participating in the elections for the 21^st Knesset. I did not find reason to address the arguments raised by the Ra’am-Balad list in regard to the authority of the Elections Committee to rule upon the causes for disqualification. The conclusion that we reached in this appeal renders those arguments moot, but in my view, the fact that those arguments were never raised before the Elections Committee suffices to dismiss them in limine.

 

EDA 1806/19 Lieberman v. Cassif

62.       At the request of the Yisrael Beiteinu faction and Knesset members Avigdor Lieberman and Oded Forer, the Elections Committee decided to disqualify Cassif from participating in the elections for the 21^st Knesset as a candidate on the Ra’am-Balad list. The Committee presented that decision for the Court’s approval in accordance with sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset.

 

Arguments of the Parties

63.       The request for Cassif’s disqualification rests upon two causes: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The evidence adduced in support of the request consisted primarily of four publications and newspaper articles – mostly from the internet – that show, according to those requesting disqualification, that in his statements, Cassif rejects the Jewish character of the State of Israel and calls for the changing of the state’s symbols and anthem, and for revoking the Law of Return. It is also argued that the evidence presented shows that Cassif supports the armed struggle of the Hamas terrorist organization against the state. This, inter alia, because he compared senior government leaders to Nazi war criminals, and because other statements testify, in their opinion, that Cassif believes that attacking soldiers does not constitute terrorism and that Israel should be fought because of its serious crimes against the Palestinian population.

64.       Cassif argued on his behalf that the evidence presented by those requesting the disqualification does not justify his disqualification from running in the Knesset elections. That is particularly so given that the request for disqualification is based, so he argues, upon distorted and tendentious quotes and relies primarily upon one interview with him in which he primarily presented academic ideas and not his political philosophy. As for the arguments that portray him as rejecting the Jewish character of the State of Israel, Cassif emphasized that he recognizes the right of the Jewish people to self-determination alongside an independent Palestinian state, while ensuring full equal rights to all residents of Israel. As for the arguments portraying him as supporting the armed struggle of Hamas against Israel, Cassif claimed that the various comparisons that he made between the State of Israel and Nazi Germany are not relevant to grounding a cause for disqualification, and that he opposes all forms of violence against any person. Similar to the arguments raised by the Ra’am-Balad list, Cassif also raised constitutional arguments in regard to the authority of the Elections Committee to examine and rule upon the disqualification of lists and candidates under the causes grounded in sec. 7A of the Basic Law, and I will already state that for the reasons mentioned in the previous chapter concerning the appeal of Ra’am-Balad, I have not found it necessary to address these arguments in the approval proceedings in regard to Cassif.

65.       The Attorney General was of the opinion that there is no cause for barring Cassif from running in the elections for the 21^st Knesset because no “critical evidentiary mass” was presented that would justify it, noting that the evidentiary grounds adduced in support of disqualification was meager in both amount and quality.

 

Negation of the Existence of the State of Israel as a Jewish State

66.       The evidence in the matter of Cassif on this cause relies upon two newspaper publications. The first is an article on the internet site of Makor Rishon from Feb. 7, 2019, according to which Cassif stated in an interview some two years earlier on the subject of the evacuation of Israeli settlements in Judea and Samaria that he viewed this as a first step towards a Palestinian state, and that the State of Israel cannot be and must not be a Jewish state. Cassif expressly refutes these words attributed to him (para. 10 of the affidavit submitted by Cassif to the Elections Committee). As already noted, the probative weight that can be ascribed to such articles, and all the more so to “second hand” articles is low.

67.       The second and more significant piece of evidence presented by those requesting Cassif’s disqualification is an interview with Cassif in the Ha’aretz newspaper in February 2019. According to the petitioners for disqualification, certain statements by Cassif in that interview can be understood as a call for the negation of some of the core characteristics of the State of Israel as a Jewish state. Thus, for example, in response to the interviewer’s question about the character of the Israeli public space, Cassif said: “The public space has to change, to belong to all the residents of the state. I disagree with the concept of a Jewish public space”, adding that this would be expressed “for example, by changing the symbols, changing the anthem […]”. Cassif was also asked in that interview whether he supported the revocation of the Law of Return and answered “Yes. Absolutely”. As for the question of the Palestinian right of return to Israel, he replied: “There is no comparison. There is no symmetry here at all […]”. These worrying statements, which Cassif did not deny, certainly bear significant weight in examining the cause for disqualification in his regard under sec. 7A(a)(1) of the Basic Law. However, we are concerned with a newspaper interview and a single statement made in it, and I therefore agree with the Attorney General’s view that this piece of evidence alone is not sufficient to meet the strict criteria established by the case law for disqualifying a candidate from standing for election to the Knesset. Indeed, as presented in detail above, in order to ground a cause for disqualification, it is necessary to present statements that unambiguously, clearly and persuasively testify to the negation of the core characteristics of the State of Israel as a Jewish state. One must also show that this is the dominant purpose motivating the candidate’s activity and that he vigorously and consistently acts for its realization as part of a concrete political program. To this we should add that in his statements before the Elections Committee and before this Court, Cassif noted that he sees himself as obligated to the platform of the Hadash party, whose representatives have served in the Knesset for many years, and stated in the hearing before the Elections Committee: “The party of which I am a member and which I represent, […] made it its motto and has always said that we view the State of Israel as a state in which the Jewish people in the land is entitled to define itself. I do not deny that, I have never denied that, and I have no intention of denying that” (Transcript 10/21, p. 37).

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

68.       Has it been shown, as the petitioners for disqualification claim, that Cassif supports armed struggle by the Hamas terror organization against the State of Israel? A large part of the disqualification request in this regard rests upon statements attributed to Cassif that imply a comparison between the State of Israel and senior members of the government of Nazi Germany and Nazi war criminals. Thus, for example, in the article on the Makor Rishon website mentioned above, it was claimed that “Cassif called Lieberman ‘a descendant of Adolph’, and explained: ‘A conceptual descendent, not an actual one”, and called former Justice Minister Ayelet Shaked “neo-Nazi scum”. In another article on the website of Channel 20 from March 2016, a Facebook post by Cassif was quoted in which he wrote about the Israeli government, among other things, that “this is a fascist government par excellence, with real Nazi motives […] and at its head, above all others: an incompetent scoundrel who has destroyed every good thing there ever was here […] an outstanding student of Göring’s doctrine”. In another article published on the Channel 20 website in April 2018, there was a recording of Cassif from a class that he gave in which he is heard saying that “in the Israeli discourse created by the current government, it is legitimate to kill Arabs. This is how one slides into the abyss of what happened in Germany 80 years ago”.

69.       Those statements, which Cassif did not deny, are very harsh, and the evident comparison between the State of Israel and government ministers to Nazi Germany is outrageous and were better never said, and having been said, I reject them in the most severe terms. The weak explanations provided by Cassif, according to which the statements were only made as metaphors in order to arouse critical public debate and to warn against dangerous deterioration, do not blunt their severity. Cassif also took the trouble to explain that in his publicist writings he emphasized that “any comparison between the Nazi annihilation and Israeli policy in the territories would make a mockery of the Holocaust”, of which it may be said that he did not practice as he preached. However, we must admit that as outrageous and enraging as these statements may be, they do not ground a cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel, and they cannot, in and of themselves, lead to the disqualification of his candidacy in the elections (and compare: the Kach case, p. 3). In any case, Cassif made it clear that he does not intend to repeat such things as an elected representative (para. 13 of the affidavit submitted by Cassif to the Elections Committee), and it is to be hoped that he will act accordingly.

70.       The additional evidence presented in support of Cassif’s disqualification on the cause of support for the armed struggle of Hamas against Israel also does ground a cause for his disqualification. In this regard, the plaintiffs directed our attention, inter alia, to a post by Cassif that was mentioned earlier, which, they argue, shows that he supports a violent struggle against the fascism and racism that have, in his opinion, spread in Israeli society. They also referred to an article on the website of Channel 20, also mentioned above, that includes a recording of Cassif from 2018 in which he is heard saying that “Hamas is a political party”. Lastly, the plaintiffs refer to Cassif’s statements in the interview in Ha’aretz in which he stated:

Cassif: “Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable […] Wherever there was a struggle for liberation from oppression there are national heroes who, in 90% of the cases, did things that were, in part, terrible. Nelson Mandela, who is now regarded as a hero, a Nobel Peace Prize laureate, was a terrorist according to the accepted definition […]”.

Interviewer: “In other words, the Hamas commanders today, who initiate actions against soldiers will be heroes of the Palestinian state that will be established?”

Cassif: “Certainly”.

Cassif asked to explain what he said, and told the Elections Committee and the Court that he opposes the use of violence against any person. He did not deny his opposition to the Israeli policy in Judea and Samaria and said that in his vision for the future he sees an end of the military regime there and that his activity is intended, among other things, to change the situation of the Palestinian people in Gaza and in general. However, as already noted, expressing this opinion alone does not give rise to a cause for disqualification (see para. 56), and Cassif declared unambiguously that he does not support opposition by means of armed struggle, but rather political, non-violent opposition (compare: the Tibi case, p. 50; the second Zoabi case, para. 71), and in his words: “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence, this was also expressly stated in the interviews with me and in every other framework […] I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all” (Transcript 10/21, p. 34). Cassif also expressed a similar position in that interview in Ha’aretz that was presented by the plaintiffs, a part of which was quoted above, in stating: “We have always opposed harming innocent civilians. Always. In all of our demonstrations, one of our leading slogans was: In Gaza and Sderot, children want to live. With all of my criticism of the settlers, going into a house to slaughter children, as in the case of the Fogel family, is something that is intolerable. You have to be a human being and reject this”.

As for Cassif’s statement in regard to harming soldiers, we are concerned with a severe, enraging statement that could be interpreted as legitimizing the harming of IDF soldiers by the Hamas terror organization. While Cassif tried to create a distinction in this regard between his theoretical, academic views and his political views, in my view, it is an artificial and unpersuasive distinction that is hard to accept. Nevertheless, at the end of the day, the evidentiary foundation presented by the plaintiffs relies upon those aforementioned publications, and I agree with the position of the Attorney General that this evidentiary foundation is meager and insufficient to ground the cause for disqualification under sec. 7A(a)(3) of the Basic Law in accordance with the criteria set out in the case law, which I discussed above.

 

EA 1867/19 Ben Ari v. Hadash-Ta’al List

71.       The request to disqualify the Hadash-Ta’al list from standing for election to the 21^st Knesset was filed by Ben Ari and Ben Gvir upon two causes: negation of the existence of the State of Israel as a Jewish state under sec. 7A(a)(1) of the Basic Law, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The Elections Committee decided by a majority of 15 for and 12 against to dismiss the request, and thus the present appeal.

 

Arguments of the Parties

72.       The appellants who seek the disqualification, and a few members of the Elections Committee who joined them as appellants, argued that the statements and actions of members of the list are intended to negate the character of the State of Israel as a Jewish state, and that its members support the Hezbollah and Hamas terror organizations while legitimizing harming Israeli citizens residing in the Judea and Samaria area and IDF soldiers.

73.       For its part, the Hadash-Ta’al list relied upon the decision of the Elections Committee and argued that the requesters of disqualification did not present an appropriate evidentiary foundation that could ground the claimed causes for disqualification. It was explained that the request was partly based upon old evidence that had been examined by the Elections Committee in previous elections, and that many of the statements attributed to members of the list were distorted and presented in a tendentious manner. It was further noted that most of the evidence was based upon reports taken from internet sites and newspaper clippings of low probative value, and that part are not even relevant to grounding the causes for disqualification.

74.       The Attorney General was of the opinion that the entirety of the evidence presented in regard to that request does not justify its acceptance inasmuch as it did not amount to the “critical evidentiary mass” required for disqualifying a list from participating in the elections for the Knesset. This is particularly so given that the evidentiary material presented in the matter of Hadash-Ta’al is significantly more limited than that presented in previous proceedings in which the said causes for disqualification were addressed. The Attorney General also added that the request was based largely on newspaper reports and parts of speeches that are of low probative value, and in particular, given the fact that we are not concerned with up-to-date evidence, and that part relates to the period preceding the elections for the 20^th Knesset.

75.       The appellants based their argument in regard to the cause of disqualification concerning the negation of the existence of the State of Israel as a Jewish state on a few statements by members of the list that are insufficient– both quantitatively and qualitatively – for meeting the necessary evidentiary threshold to ground the argument that Hadash-Ta’al negates the core characteristics of the State of Israel as a Jewish state. The primary piece of evidence presented by the appellants in this regard was an interview with Knesset member Tibi in the Ha’aretz newspaper in March 2017, in which he was asked to provide a hypothetical description of the situation in which the vision of two states was abandoned and instead, a single state was established in which the Arab minority became the majority. In that interview, Tibi is quoted as saying that such a state would be substantially different from the State of Israel today, and that the Declaration of Independence would be replaced by a civil declaration in which equality would be a supreme value, the Law of Return would be revoked, and the state’s symbols would be changed. However, Tibi expressly stated in that interview that his vision is a vision of two states – a fact that the appellants refrained from mentioning in their arguments. The appellants further referred to a short segment of a television interview with Tibi in 2011 in which he said that he cannot recognize the State of Israel as a Jewish state. These two pieces of evidence, which are not from the recent past, are not sufficient to show clearly, persuasively and unambiguously that Tibi acts for the negation of the existence of the State of Israel as a Jewish state. It should be borne in mind that we are concerned with a member of Knesset who has served for some two decades, and that no argument was presented in regard to his parliamentary activity that would support the claimed cause for disqualification (compare the Ben Shalom case, p. 251). The additional evidence presented consists of quotes regarding which there is doubt as to whether they could ground the cause of negation of the existence of the State of Israel as a Jewish state, and in any case, they are attributed to Raja Zaatra, who is not a member of the Hadash-Ta’al list for the 21^st Knesset and who claimed that the quotes were untrue. The appellants further referred to statements by Cassif, who is a member of the Hadash-Ta’al list, but as noted above, we did not find them sufficient to lead to disqualifying Cassif himself, and thus they cannot lead to the disqualification of the entire list (see and compare: the Tibi case, p. 44; the Balad case, para. 20).

76.       The evidence adduced by the appellants in all that regards the cause for disqualification concerning support for armed struggle by a hostile state or a terrorist organization against the State of Israel comprises, inter alia: a public address by Tibi in 2011 in Arabic in which, it is argued, he expressed praise for martyrs, and a report from 2007 on his participation in a march marking five years since Operation Defensive Shield in Jenin, among a crowd in which people dressed up as suicide bombers were present. In addition, the appellants referred to statements by a member of the Hadash party, Aida Touma Suleiman (hereinafter: Suleiman) in which she called the conduct of IDF forces in violent events on the Gaza border “premeditated murder”, refused to call the Hamas a terrorist organization, and argued that “an intifada by the people against the occupation is legitimate”. The appellants further referred to Suleiman’s participation in a demonstration in support of those who refuse to serve in the IDF, and to her refusal to hold a debate on women soldiers in the IDF when she served as chair of the Knesset committee for the advancement of the status of women. In addition, statements by a member of the Ta’al party, Osama Saadi, were presented expressing support for a popular struggle and who, it is claimed, refused to denounce harming Israeli citizens who reside in Judea and Samaria. The appellants also referred to statements by the chair of the Hadash faction, Ayman Odeh (hereinafter: Odeh), who refused to denounce harming IDF soldiers and thanked a Palestinian television station that praised the parliamentary activity of the Joint List in the 20^th Knesset. The appellants further referred to a report that Odeh had clashed with police in a conference of the Popular Front and Democratic Front organizations, reports on meetings of members of the list with security prisoners in prison, reports of discussions held with Palestinian leaders, and to the Hadash party’s condemnation of the decision of the Persian Gulf states and the Arab League to declare the Hezbollah a terrorist organization.

77.       I examined the said assembled evidence and arrived at the conclusion that it is insufficient under the strict criteria outlined in the case law for establishing a cause for disqualification under sec. 7A(a)(3) of the Basic Law. As the Attorney General noted, part of the evidence presented in this matter does not show – even prima facie – direct or indirect support for terrorist activity. To that one should add that some of the evidence adduced is old and even precedes the elections for the 20th Knesset, and the Elections Committee to which that evidence was presented in the past did not find that it grounds the cause for disqualification. Indeed, some of the material attributed to the representatives of Hadash-Ta’al as detailed above can be interpreted as supporting an armed struggle against the State of Israel by a terrorist organization, but given the fact that in those very same publications to which the appellants refer there are also statements by members of the list according to which they do not support violence as a political approach, the resulting doubt weighs against that interpretation. Moreover, those requesting disqualification did not present the official platform of the list, which is a primary source depicting its purposes (the second Neiman case, p. 186; the Moledet case, p. 362), and for this reason, as well, it is difficult to conclude that the list supports armed struggle against the State of Israel by a terrorist organization and that this is the central, dominant purpose of Hadash-Ta’al for the realization of which it acts in a real and consistent manner.

 

Conclusion

78.       For the reasons detailed above, I have, as stated, arrived at the conclusion that the appeal in EA 1866/19 should be granted in part, and to hold that Ben Ari is banned from contending in the elections for the 21^st Knesset, which does not apply to Ben Gvir; to overturn the Elections Committee’s decision in EA 1876/19 and hold that the Ra’am-Balad list is not barred from participating in those elections; to overturn the Elections Committee’s decision in EA 1806/19 and hold that Cassif may participate in the elections for the 21^st Knesset; and to deny the appeal in EA 1867/19 and hold that the Hadash-Ta’al list is not barred from contending in the elections for the 21^st Knesset.

 

Justice I. Amit:

            I concur in the decision of President E. Hayut, and I will add a few words of my own.

1.         Every election season, as a kind of ritual, the Supreme Court is called upon to address the disqualification of lists or candidates on the basis of the Knesset Elections Law [Consolidated Version], 5729-1969. Knesset elections are a purely political matter, and the Elections Committee reflects the relative political power in the Knesset like a mini-Knesset. As opposed to this, sec. 7A of Basic Law: The Knesset was originally enacted to reflect timeless constitutional criteria of causes for qualification that are not judged on the basis of prevailing sentiment. In view of the fundamental right to vote and to be elected, the Supreme Court established strict criteria for the disqualification of a list or a candidate, which were reviewed in para. 16 of the President’s opinion: dominant purpose; express declarations or unambiguous conclusions; non-sporadic conduct; and persuasive evidence.

            In putting those principles into practice, we examine each disqualification independently on its own merits, in accordance with the relevant cause for disqualification and the evidence referring to it, while not seeking any kind of political “symmetry” or “balance”. As I had the opportunity to say: “the voting in the Elections Committee is political, and thus the great caution that this Court must exercise as a party to the decision so as not to be infected by the political game” (EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi [6], para. 1 of my opinion) (hereinafter: the second Zoabi case)).

            And now to the matter on the merits.

2.         Sec. 7A(a)(2) of Basic Law: The Knesset – “Incitement to Racism”:

            The legislature stated its opinion loudly and clearly. Incitement to racism is politically out of bounds. Incitement to racism is contrary to universalist democratic values. Incitement to racism is incompatible with the values of the State of Israel as a Jewish state. Incitement to racism – not in this house and not in the Knesset. For this reason, the Kach movement was denounced and expelled from the community and placed beyond the bounds of law. Racially inciting discourse is harmful by its very nature, and as such, I am of the opinion that it should not be subject to the probability test.

3.         In the “last round”, Baruch Marzel’s candidacy was confirmed, but in his dissent, Justice Rubinstein expressed his opinion that we were concerned with “the sheerest of sheer costumes” (the second Zoabi case, para. 118 of his opinion). As the President so aptly demonstrated, the candidate Ben Ari did not even bother to put on a disguise. According to him, the logic is as follows: Whoever is not a Zionist is an enemy, the overwhelming majority of Israeli Arabs are not Zionists, therefore the conclusion is that the overwhelming majority of Israeli Arabs are to be viewed as enemies. The Attorney General was rightly of the opinion that Ben Ari should be disqualified, and we agree.

4.         Sec. 7A(a)(1) of Basic Law: The Knesset – “Negation of the existence of the State of Israel as a Jewish and Democratic State”.

            In the second Zoabi case, I noted that “the Jewish public must be sensitive to the dilemma of the Arab minority, but similarly, elected Arab representatives must conduct themselves with wisdom and sensitivity in regard to the state of which they are citizens and understand the sensitivities of the majority”. In the fascinating hearing before us, it could be inferred from the statements of those requesting the disqualification of Ra’am-Balad that a party that is not Zionist should be deemed as one that entirely rejects the existence of the State of Israel as a Jewish state and must, therefore, be disqualified. In my opinion, this argument insensitively pigeonholes a considerable part of the Arab population that, while not Zionist, identifies with the State of Israel and sees itself as an integral part of it. It is hard to accept that the State of Israel would make an outcast of anyone who is not a Zionist, or anyone who ideologically rejects the Zionist idea. Disqualifying a list or a candidate for “incitement to racism” reinforces both characteristics of the State of Israel as “Jewish and democratic”. Disqualifying a list or a candidate for discourse and speech that is not Zionist in accordance with the approach of those seeking disqualification in the present case constitutes somewhat of a lessening of the democratic element. Therefore, and for the purposes of the cause for disqualification under sec. 7A(a)(1) of Basic Law: The Knesset, the two components of “Jewish and democratic” must be balanced wisely and sensitively so that accusers will not say that our state is “democratic” for the Jewish majority and “Jewish” for the Arab minority.

            And note: we sing [in the National Anthem – trans.] “the soul of a Jew still yearns” with misty eyes, and the Law of Return, 5710-1950 is, indeed, the “Foundation Stone” of the State of Israel and a Jewish state. The Law of Return is the alpha and omega for the very existence of the State of Israel, and it is what ensures the existence of a Jewish majority in the State of Israel. But not every passing thought, notion, or expression that casts doubt about the Law of Return will inherently lead to disqualification given the strict tests for disqualification noted above (such as dominance), and perhaps the probability test as well. However, a bill to rescind the Law of Return, or a party platform that openly calls for the rescission of the Law of Return might move a list across the boundary of disqualification, and it would seem that Balad, almost as a habit, not infrequently walks on the boundary. It would not be superfluous to note that in the Tibi case (Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 40), President Barak was ready to accept the statement of MK Bishara that he did not demand the revocation of the Law of Return. From this we can infer the result had it been otherwise claimed. This brings us to the central piece of evidence presented to us in regard to Balad, which is the Basic Law: A State of all its Citizens Bill that it presented to the Knesset, and which in effect, expresses a desire to undermine the Jewish character of the state.

5.         A number of reasons led me to the conclusion that the Balad list should not be disqualified for that bill, even without addressing the question of the probability test.

            First, most of the Balad Knesset members in the prior Knesset are not on the current list, which changes its character. Second, that bill should be seen as a sporadic act of protest following the enactment of Basic Law: Israel – The Nation State of the Jewish People. The bill is not included in Balad’s platform, it is not claimed that it was part of its platform in the past, and no systematic, consistent activity in that direction was proven. The bill should, therefore, be viewed as a one-time act that does not, in and of itself, give rise to a cause for disqualification.

6.         These are the main reasons why I am of the opinion that that the Balad party walked on the margin but did not cross it, even though the bill brought it but a step away. For my part, I will leave the grounds for the Attorney General’s opinion – that Balad did not stand alone but rather as part of a joint list of Ra’am-Balad – for further consideration. One could, on the other hand, argue that the very fact of that partnership with another party placed Balad under a higher duty of care lest crossing the boundaries might harm the other party. The other side of the coin is that the unification of parties does not grant immunity from disqualification, such that parties that may join with Balad in the future will have to take that into account. I will, therefore, leave the matter for further consideration.

 

Justice U. Vogelman:

1.         I concur in the conclusions and the comprehensive opinion of my colleague the President, and with the main points of her reasoning.

2.         The principles applicable to appeal and approval proceedings with which we are concerned are grounded in a broad range of case law, which is appropriately detailed in the opinion of my colleague the President.

3.         My colleague the President addresses the difference between an elections appeal and an elections approval, and on the various approaches in our case law in regard to the scope of the Court’s review in the different proceedings. My colleague Justice I. Amit, for his part, addresses the caution that the Court must adopt, in his view, in proceedings such as these due to the fact that the vote in the Elections Committee if political.

4.         I see no need to set in stone the proper approach among those enumerated by my colleagues (inasmuch as each of them leads to the same result in the instant case). However, I would like to emphasize that, in my view, given the nature of the rights and balances involved, the “political” considerations cannot be given weight in terms of the constitutionality of the decisions, and that the political nature of the proceeding in the Central Elections Committee is not meant to influence the form of judicial examination and its scope.

5.         On the matter of disqualification for incitement to racism.

            The first matter I wish to address in this regard concerns the application of probability tests for the realization of the dangers that the causes for disqualification are intended to prevent (a question that has not yet been resolved in our case law). In the context of the said cause, I would like to point out that, in my view, there is no place for a “probability test” inasmuch as racist expression is not worthy of protection. In the words of Justice D. Beinisch: “Racism is the kind of affliction whose isolation and removal from the political and social arena is an essential condition for preventing its spread” (EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 88) (hereinafter: the Tibi case)).

            The words of Justice Procaccia in the same matter are apt:

The phenomenon of racism in the chronicles of history and the annals of the Jewish people is special and unique. Nothing compares to its rejection and the defense against it even among the many protections of the fundamental human rights that the constitutions of western states diligently labor to ground. The moral, ethical taint of incitement to racism, against the background of its deep opposition to the universal concept of human rights, and in view of the atrocities of the Holocaust of European Jewry that was annihilated due to racial theory, does not tolerate its inclusion on the podium of ideas and opinions of political discourse. That is so, even if there is no foreseeable danger whatsoever of the realization of the inciter’s dogma, and even if his words are like “a voice crying out in the wilderness” without echo and without being heard.

Racism is condemned, and it must be eliminated by virtue of the International Convention on the Elimination of All Forms of Racial Discrimination of 1966, of which Israel is a signatory. The parties to it pledged not to sponsor racial discrimination and to adopt immediate measures in order to uproot every phenomenon of racism (arts. 2, 4, and 5 of the Convention).

The condemnation of racism takes on a special dimension in Jewish tradition in view of the blood-soaked history of a nation that was a victim of the manifestations of this phenomenon over generations. Racism stands in contradiction to the fundamental values of the State of Israel as expressed in the Declaration of Independence, according to which full social and political equality must be ensured for all citizens regardless of religion, race, and sex. The depth and force of the condemnation of racism as a social phenomenon do not accord with granting of an opportunity to a candidate to run for office on the basis of racist ideas among the range of opinions and perspectives expressed in political discourse. Standing for election on the basis of racist ideas flies in the face of the educational, moral purpose of inculcating the principles of equality and tolerance in Israeli society. These ideas cross the bounds of the red line that guarantees tolerance even for expressing deviant ideas and views. Casting them out beyond the pale is necessary so that expressing them will not be interpreted, even by inference, as granting approval and legitimacy to those who hold them to participate in the life of the state (and compare: R. Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, p. 173).

                        […]

In this spirit, the condemnation of incitement to racism and its removal from the framework of political contest is a value unto itself, unconditional and unrestricted even where there is no attendant probability whatsoever of the realization of its potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entrance of inciters to racism into the political arena (compare the words of Justice E. Goldberg in the meeting of the Knesset Elections Committee in the matter of the disqualification of the Kach party, Oct. 5, 1988, p. 47ff.). Incitement to racism is condemned as a value of universal and national heritage, and it stands above and beyond the probability test of its foreseeable danger on the basis of some criterion or another. The contradiction between racism and the fundamental values of the stare is so deep that anyone who embraces it in his political thought should be disqualified from the outset (the Tibi case, pp. 89-90).

            I agree with every jot and tittle of these true words.

6.         Moving from the general to the specific – my colleague well described the factual grounds upon which we decided that the cause of incitement to racism is met in the case of Ben Ari, and it would be superfluous to reiterate the well-grounded presentation of the evidentiary foundations. Ben Ari’s incitement extends to a broad range of subjects, among them a call for excluding Arab citizens from residing within the limits of an Israeli city, recall dark periods in the history of nations. The addition of the cause for disqualification with which we are concerned to the Basic Law by the constituent authority of the State of Israel was intended for a war against such phenomena, and it is our role to interpret the Constitution and maintain its boundaries.

7.         The matter of Ben Gvir is different. I concur with my colleague’s conclusion – which ascribed weight to his declarations concerning changing his manner – that the foundation amassed in his regard does not amount to a “critical mass” that grounds a cause for disqualification.

8.         As for the Ra’am-Balad list – as my colleague notes, the entirety of the evidence adduced is not qualitatively different from what was presented to this Court in previous proceedings that concerned the question of the disqualification of Balad and members of the list in which it was held that it did not constitute a sufficient foundation for disqualification. I see no need to address the Basic Law bill that Balad presented, to which my colleagues referred, given that the Balad Knesset members who served in the last Knesset are not included in the current list, and given the clarification by the list’s attorney that the bill is not part of Balad’s platform.

9.         In the matters of Ofer Cassif and the Hadash-Ta’al list, as well, I concur with the conclusion that the evidentiary foundation is insufficient to ground the claimed causes for disqualification.

 

Justice M. Mazuz:

            I concur in the main points of the reasons and conclusions of President E. Hayut, and I wish to add two comments. Because they are not necessary for the decision, I will state then in brief:

1.         The cause of “negation of the existence of the State of Israel as a Jewish state”:

            As we know, the cause of “negation of the existence of the State of Israel as a Jewish and democratic state” under sec. 7A(a)(1) of Basic Law: The Knesset formerly comprised two separate causes: “Negation of the existence of the State of Israel as the state of the Jewish people”, and “negation of the democratic character of the state” (secs. 7A(1)-(2)). The two causes were unified in the framework of a 2002 amendment to Basic Law: The Knesset that added the authority to disqualify a candidate (not just a list) and the cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel. As explained in the Explanatory Notes, this unification derived from the desire for uniformity between the wording of sec. 7A and sec. 5 of the Parties Law, 5752-1992 (“and this because the two sections are interrelated”), and was not intended to introduce a change in the content of these causes by virtue of their unification.

            In practice, the unification of the causes, which involved a certain change in the wording of the cause, was the basis for an interpretation of this cause that was both different in content and broader in scope. While under the prior wording, the cause of “negating the existence of the State of Israel as the state of the Jewish people” addressed the negation of the view that the State of Israel is the state of the Jewish people in the sense of the place in which it realizes its right to self-determination, under the unified wording, the term “Jewish state” was interpreted as referring to the internal content of the state’s identity and the elements of the Jewish identity of the state from within (“the primary symbols” of the state and the “nuclear characteristics” of its Jewish identity).

            In my opinion, the proper interpretation of the cause for disqualification of “negating the existence of the State of Israel”, like the separate cause under the prior wording, refers to the identity of the State of Israel as the state of the Jewish people in the national sense, as the place in which it realizes its right to self-determination, and not as referring to internal features of the state that characterize it as a Jewish state. This position has consequences, inter alia, in regard to how to view the Basic Law: A State of all its Citizens Bill introduced at the time by Knesset members of Balad, however, in view of the President’s conclusions in this regard (para. 58), I see no need to expand upon my approach to the bill and I will only note that I agree in principle with the comments of Justice I. Amit in paras. 4-5 of his opinion.

 

2.         A Probability Test and Incitement to Racism:

            This issue has been addressed on several occasions in previous case law, beginning with the first Neiman case, and various opinions – mostly rejecting it in general, or at least in regard to the cause of incitement to racism – but it has been left for further consideration and remains undecided.

            I am of the opinion that there is no place for a probability test in applying the causes for disqualification under sec. 7A of Basic Law: The Knesset. The probability test has no grounding in the language of the law, and it raises many – theoretical and practical – difficulties in its application. I will not presume to exhaust all the reasons for this position, but will suffice with a few words: first, in terms of the interpretation of the law. As we know, the interpretation of a statute begins with its language and is limited by it. There are no grounds for requiring a probability test in the language of sec. 7A. Section 7A refers to objectives and actions, including statements, by a list or candidate. We are concerned with causes of “conduct” not “results”. Second, the Court, called upon to approve or review a decision by the Central Elections Committee to disqualify a candidate or list, lacks the tools for applying a probability test for the purpose of approving or rejecting the probability evaluation of the Elections Committee. A probability estimate in the public-political context is inherently speculative, and the Court would do well to refrain from it. Third, and this is the main point, sec. 7A treats of the lack of legitimacy of a list or candidate who meets the disqualification criteria to participate in the “democratic game”. The theoretical basis for disqualifying lists or candidates, as stated, does not suffice by preventing a real, concrete threat, but primarily concerns not granting legitimacy to lists of candidates whose objectives and actions are beyond the legitimate democratic boundaries for participating in the democratic elections.

            It would appear that the cause of “incitement to racism” under sec. 7A(a)(2) well demonstrates this. Incitement to racism and racist acts are unacceptable per se, as they are contrary to the most basic values of a democratic society, which is founded upon the idea of the equality of human beings. We are concerned with universal values accepted in the law of nations. Under the International Convention on the Elimination of All Forms of Racial Discrimination, known as the CERD Convention – signed by the State of Israel on March 7, 1966, ratified on Jan. 3, 1979, and entering into effect on Feb. 2, 1979 – the State of Israel assumed, like the other signatory nations, inter alia, the obligation to prohibit racial and other discrimination and to adopt all means, including legislation, to bring about its end (art. 2(1)(d) of the Convention). In 1985, together with the amendment of Basic Law: The Knesset and the addition of sec. 7A, the Penal Code was also amended with the addition of Article 1A: Incitement to Racism, which established various offences of incitement to racism (both amendments were included in the same pamphlet of bills – H.H. 5745 193). The offences of incitement to racism are conduct crimes, not result crimes, and do not comprise an element of probability (“it does not matter whether the publication did cause racism” – sec. 144B(b)).

            Incitement to racism is, therefore, prohibited and unacceptable without regard for the probability of the realization of its objectives. It is an illegitimate form of discourse in a democratic society. Incitement to racism does not represent any protected value that requires a balancing of interests. The value of freedom of expression, which is the life breath of democracy, was intended to protect non-violent public debate and to permit a conceptual contest among legitimate values in a democratic society. Racist discourse “pollutes” the democratic discourse and undermines the purpose of conceptual inquiry among the members of society and the free establishment of views on the basis of democratic values. Therefore, the reason for preventing the participation of a list or candidate that incites racism in the elections is not restricted to a fear of the realization of the objectives of the incitement, but is primarily concerned with the public value of not granting legitimacy to racist speech as part of the democratic discourse. In this sense, the cause for disqualification for incitement to racism is a special case of the cause relating to the negation of the democratic character of the state.

            Lastly, I would emphasize that I do not believe that the probability test is necessary for mitigating the causes for disqualification or for granting flexible tools for their application. To that end, the case law established a strict, narrow interpretive approach to the causes of disqualification. Strict criteria were also established that are implemented in judicial review of this matter, among them the demand that the objectives attributed to a list or candidate constitute a central, dominant objective and not a secondary, marginal issue, and the requirement of active, consistent, and systematic action for the realization of those objectives. It was further held that the evidence for disqualification must be persuasive, clear and unambiguous. All of these provide the Court with effective tools to ensure that the disqualification authority, which is an exceptional and intrusive authority, be exercised only in extreme, clear cases, without the need for the problematic means of a probability test.

 

Justice N. Sohlberg:

1.         If we were to interpret and implement the causes for disqualification in sec. 7A of Basic Law: The Knesset as written, as they would be understood by the average person, then not only would Dr. Michael Cassif be barred from candidacy for the Knesset elections. A plain reading of the section would, in all probability, lead us to conclude that additional lists and candidates whose matters have been examined by this Court over the years would also be granted this dubious honor.

2.         However, that is not the case. From the very outset, this Court adopted a strict approach to the legal interpretation of sec. 7 and to its application in practice. This approach reflects a value-based decision that democracy grants special – almost supreme – importance to the constitutional right to vote and be elected. Disqualifying a list or a candidate from standing for election to the Knesset must be the very last resort; one that is reserved for manifestly extreme case in which there is no room for doubt: “The essence of such a matter, the limitation of a basic constitutional right, inherently carries a standard of interpretation that must be strict and narrow, and section 7A should be reserved for only the most extreme cases. This interpretive approach does not conflict with the statute but is rather a result of a proper understanding of the purpose of the statute, which does not seek to limit freedoms, but to protect them against actual danger” (the second Neiman case, p. 187; emphasis here and below added – N.S.). This approach has become firmly rooted in the case law of this Court: “Preventing the participation of a party in the elections is a most extreme step. The right to vote and to be elected is a right of the highest constitutional level” (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], p. 802, per Deputy President A. Barak); “Preventing a party from participating in the elections is an extreme and exceptional step that in many ways directly contradicts the fundamental principles upon which democracy rests” (the Balad case, para. 3 of the opinion of President Beinisch); “Preventing participation in Knesset elections is an extreme step that is reserved for the most exceptional cases for which the normal democratic tools are insufficient” (the second Zoabi case, para. 75 of the opinion of President M. Naor).

            I will briefly summarize the guiding criteria as expressed in the case law: Barring participation in Knesset elections will only be done as when all else has failed.

3.         Recently, in the Basic Law: The Knesset (Amendment no. 47) (Prevention of Participation in Elections due to a Candidate’s Statements) Bill, the constituent authority expressed the view that it accepts the narrow path taken by the Court in applying sec. 7A. The bill expressly established that a person’s actions also include his statements. The Explanatory Notes clarify as follows: “The proposed amendment expressly anchors the approach accepted in the case law in this matter, according to which “actions” under sec. 7A of the Basic Law also include statements. Thus, the amendment is not intended to alter the Court’s case law according to which the application of sec. 7A of the Basic law will performed narrowly and strictly in order to protect the state’s most vital interests” (H.H. 675, p. 52). However, there was also some criticism of the direction of the case law, on the need to take care not to adopt an overly restrictive interpretation of the causes for disqualification in sec. 7A, while unduly expanding the boundaries (see, e.g., the second Zoabi case, para. 8 of the opinion of Deputy President E. Rubinstein).

4.         The criteria developed in the case law for the application of sec. 7A, which reflect the narrow interpretive approach, were set out in para. 16 of the opinion of my colleague the President. Primarily, in brief, one must show that the cause for disqualification can be found in the objectives or the actions of the list or candidate; those objectives or actions must form part of the dominant characteristics of the actions of the party or candidate; they can be learned from express declarations or from unambiguously probable conclusions; theoretical objectives are insufficient, but rather one must show systematic “activity in the field” that must constitute severe, extreme expression in terms of its intensity; and lastly, the evidence based upon the above must be “persuasive, clear, and unambiguous”.

5.         On the basis of those criteria, my colleague the President found, and my colleagues concur, that the evidentiary foundation in the matter before us paints an unambiguous and persuasive picture according to which Ben Ari “systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public” (para. 42 of the President’s opinion). Therefore, she held that he must be disqualified.

6.         I considered and reconsidered the matter. I carefully read the various statements, watched and listened. I considered the various clarifications and explanations over and over again, and the dilemma was difficult and weighed heavily. I did not easily decide to disagree with my colleague’s conclusion. The source of my dilemma was the substantial gap between the image of Ben Ari as reflected in the virtual arena – in the social networks – and that shown us in the Elections Committee’s hearings and in the Court. Thus, in his affidavit in the instant proceeding, Ben Ari rejected the claims about his racist views, and declared, inter alia, as follows:

I do not think that people are of different value due to their ethnic, national or religious origin. All human beings were created in the Divine image, and all human beings were granted free choice. Your own deeds will cause you to be near, and your own deeds will cause you to be far[1] […] In my view, the Arab National Movement, whose purpose is to destroy Jewish sovereignty through the use of violence and terror is the enemy of the State of Israel, of the Jewish people and of Zionism. I would like to emphasize that what makes it an enemy of the state, the people and of Zionism is not the ethno-national origin of its members and supporters, and not their religious belief.  What turns the members and supporters of the Arab National Movement into enemies are the political objectives that this movement established and the ways in which it acts for the realization of those objectives since the beginning of the 20^th century and to this day […] Anyone who accepts that the State of Israel is the state of the Jewish people and agrees that Israel is a Jewish and democratic state is a desirable citizen who is worthy of all the civil, social and political rights without regard for religions, race, sex, ethnic origin or skin color. In addition, I am of the opinion that basic human rights are granted to every person as such, and that the state must act justly and fairly toward every person without regard for religion, race, sex, ethnic origin, or skin color (paras. 9, 16-17 of the affidavit).

7.         Further on in the affidavit, Ben Ari addresses all the statements quoted in his regard (as opposed to in the hearing before the Elections Committee, in which he addressed only a part of them) and explained that “all of my arrows are directed against those who are not loyal to the State of Israel and hostile to the Zionist enterprise. Even if, at times, my words may sound or be apprehended as general, that absolutely does not reflect an intention to generalize, and in no way reflects my true, consistent opinion” (para. 22 of the affidavit). Like the cases adjudicated by this Court in the past, real doubt arises in regard to the sincerity of Ben Ari’s declarations.

8.         Three examples from the past: (a) Baruch Marzel declared, at the time, that he had recanted his prior views, that he sought to act only in accordance with the law, accepts the principles of democracy, and had withdrawn from the path of generalized statements of the Kach movement. A long line of evidence led the Court to a conclusion in regard to “a real doubt as to the sincerity of Mr. Marzel’s declarations, according to which he had disavowed his approach and his former racist, undemocratic ideology” (the Tibi case, para. 81 of the opinion of President A. Barak). Later, prior to another election, President M. Naor stated: “I, too, do not believe that Marzel has changed his views and thoughts” (the second Zoabi case, para. 33). (b) Hanin Zoabi declared, at the time, her opposition to violence, and nevertheless “it was difficult for me to be persuaded that MK Zoabi does not support armed struggle” (ibid., para. 7 of the opinion of my colleague Justice I. Amit). (c) MK Azmi Bishara argued, at the time, that he opposed violence and armed struggle, and he, too, did not earn much trust: “There is doubt in our hearts. But the doubt must act – in a democratic state that believes in freedom and liberty – in favor of the freedom to vote and to be elected” (the Tibi case, para. 46 of the opinion of President A. Barak).

            As may be recalled, Hanin Zoabi and Azmi Bishara served honorably as members of the Israeli Knesset. Marzel’s candidacy was also approved, twice, although he was not elected. And what of the case of Ben Ari? In the end, his statements “in real time” speak for themselves, and clearly to his detriment. I will not belabor the point and repeat what has already been presented at length in the opinion of my colleague the President. I will suffice by referring there, and the reader will not be pleased. The statements are not at all consistent with the tolerant, placating tone that arises from the above affidavit presented in these proceedings. Which Ben Ari should we therefore believe?

9.         Ultimately, I inclined to the view that there is no justification for ordering Ben Ari’s disqualification. I have not arrived at this conclusion because I take incitement to racism lightly, but because I am strict in regard to the fundamental constitutional right to vote and to be elected. Given the strict criteria applied in the case law of this Court over the years, and in view of Ben Ari’s explanations and clarifications, there is doubt as to whether the statements amount to incitement to racism or a negation of the democratic character of the State of Israel to the point that would justify barring Ben Ari from running in the Knesset elections. Indeed, the fundamental right to vote and to be elected is not absolute. In appropriate circumstances, it is proper to limit it, but that is not the situation in his regard. While the evidentiary foundation in the matter of Ben Ari is broad in scope, it is not more exceptional, extreme and severe in “quality” and intensity than matters brought before this Court in similar cases (both in the Tibi case and the second Zoabi case). While Israeli democracy requires protection, it is still strong enough to comprise even Ben Ari as a member of Knesset (as we may recall, Ben Ari already served in the position in the recent past, in the years 2009-2013).

10.       This result is required for two additional considerations that are of a practical nature: First, the procedural framework in which we act. As we know, sec. 7A was presented to the Knesset together with the Penal Law (Amendment no. 24) Bill, 5745-1985, which established an express criminal prohibition upon incitement to racism. “We are determined to combat the phenomenon of incitement to racism with full force. To that end, we decided to act on two planes – on the constitutional plane, by including incitement to racism as a cause for the disqualification of a list of candidates from participating in Knesset elections, and on the penal plane – establishing an offense of incitement to racism in the Penal Law” (from the statement of the Minister of Justice, MK Moshe Nissim, in presenting the bills for a first reading; Knesset Record (5745), p. 2381). As opposed to the criminal process, which is conducted in accordance with a clearly defined framework of procedure, which includes, inter alia, an evidentiary proceeding in which it is possible to question and interrogate carefully, in the constitutional proceeding before this Court, the factual examination is far more limited. This requires us to be especially careful in drawing conclusions and establishing facts on the basis of the evidentiary foundation presented before us. Second, lest we forget: Even after a candidate has cleared the hurdle of sec. 7A, Israel is not bereft:[2] “The very fact that a candidate is permitted to contend in the Knesset elections does not mean that from the moment he is elected he may do whatever he pleases. There is still the possibility of rescinding the immunity of a member of Knesset in certain situations, placing him on trial if it be found that he committed a criminal offense, and terminating his tenure in the Knesset if he is found guilty of an offense of moral turpitude” (the first Zoabi case, para. 35 of the opinion of President A. Grunis).

11.       It cannot be denied that Ben Ari’s statements – at least in large part – are hard to digest. I was, indeed, very annoyed by his callous style, the racist tone, and the coarse generalities. It does not do honor to him or to those who listen to his teachings. We can and should protest against evil, and against those who seek our harm and our lives – foreign and domestic. But we are obliged – particularly as public servants – to do so responsibly and carefully. Nevertheless, even when common sense protests and the soul recoils from Ben Ari’s statements, there is still no justification for placing him beyond the pale. The strength of freedom of expression, the strength of democracy “is not the recognition of the right to speak pleasantries that are soothing to my ears. Its strength is in the recognition of the right of the other to say things that are grating upon my ear and that pierce my heart” (HCJ 14/86 Laor v. Theater and Film Review Board [22], p. 441). That is true of freedom of expression in general, and of political speech in particular, when what is at stake – we will not refrain from repeating – is a mortal blow to the fundamental constitutional right to vote and to be elected.

12.       I wholeheartedly concur with my colleague the President on our obligation to combat racism uncompromisingly. As a son of my people and a descendant of my family, I am well aware of where the terrifying harm of hate of the stranger and the different leads. But make no mistake, the two are not comparable, and not even close. And note: the struggle against racism is not only on the legal plane, but also – and primarily – on the educational plane, “in a reassessment of the ways of educators and pupils alike, in all walks of our society” (the first Neiman case, p. 302). In this regard, it would be proper to quote what Rabbi Zvi Yehuda Kook wrote in the month of Nissan 1947 in a letter to the principals and teachers of a Jerusalem school. The Minister of Justice, MK Moshe Nissim, quoted part of the letter, titled “Embarrassing and Sad Conduct of Children”, in presenting the bill in regard to sec. 7A to the Knesset plenum for a first reading, as follows:

To the Principal and Teachers of a school here in our Holy City, may it be rebuilt and reestablished!

I must bring the following matter to your honorable attention, as follows: This morning, while passing by the school on the way to Yaffo-Ben Yehuda Street, I saw some from among a group of children from the school repeatedly hitting and coarsely taunting Arab peddlers who passed there. Twice together – at the two Arabs, one young and one old, who were apparently partners, beginning with the younger one and continuing with the older one with particular coarseness. This occurred a short distance from the gate to the schoolyard. Then again at a youngster on the sidewalk of Jaffa Road, at the corner of Ben Yehuda Street.

I was saddened and very ashamed by what I saw. Due to their running and mischief, I was unable to catch them and rebuke them for this. I do not know who these children are, or who are their parents and teachers. I know only that they were from the school. Not all of them, not all of the group of children from the school, took part in that despicable harm and taunting, but some of them. And I believe that some of them protested.

Nevertheless, the very existence of this fact, which pained and insulted me, as noted, requires that I bring to your awareness the need for greater and special educational attention to bringing an end to such possibilities, both in and of itself as a matter of Jewish law and morality, and in terms of the practical community and political value of preserving peace and good neighborliness.

With all due respect and in the hope of the glorification of God and the salvation of his people and heritage.

            Here we see plain, clear, resolute, human Jewish morality. We must walk in its light.

13.       For the same reasons for which I was of the opinion that we should not order the disqualification of Ben Ari, I arrived at the conclusion that the Election Committee’s decisions in the matters of the Ra’am-Balad list and of Dr. Ofer Cassif should be overturned and that the appeal in regard to the Hadash-Ta’al list should be denied, and that we should hold that they are not barred from participating in the Knesset elections. As in regard to the decision is the matter of Ben Ari, this decision, as well, was not at all easy. Some of the statements presented to us – both those attributed to Cassif and those attributed to other members of the Hadash-Ta’al list – are not pleasant to the ear, to put it very mildly. But just as we are enjoined and stand ready to defend against those who would incite to racism and thereby undermine the democratic character of the State of Israel, so we must defend against those who would undermine its Jewish character and who express support – express or implied, publicly or privately – terrorist attacks and murder. In the course of the debate on sec. 7A, prior to its first reading, MK Michael Eitan rightly stated in this regard:

The State of Israel has a political need to provide an answer to a long list of families of Jewish victims who were harmed solely because they are Jews here in the State of Israel on the question of whether the purpose of defensive democracy, that has been and is employed, is to protect them, as well. Can Jews in the State of Israel who are harmed by the agents of the PLO also find an answer in such legislation that is intended to defend democracy to the fact that there are people in the State of Israel who identify with the PLO and see themselves as its agents? And there is also a Knesset faction that once sent a telegram expressing solidarity to the Palestine National Council in Amman, which identifies with the PLO. Where is defensive democracy in their regard? Where is the symmetry? Should democracy defend itself only against insane Jewish fanaticism?

                        […]

When we discuss the issue of defensive democracy, we have to provide an answer to the Bromberg family, the Tamam family, the Ohana family, and a long list of families that daily ask the simple question: Is the purpose of defensive democracy to defend us as well, or is the only answer that marginal group to which we all take exception? And when I ask that question, I understand that we are treading a delicate, sensitive line because we are concerned with a democratic regime, we are not interested in silencing debate, we are not interested in outlawing lists. But in any event, we must ask ourselves the question what is the boundary line?

14.       Indeed, the question of where the boundary lies is difficult. It would seem that thirty years after the constituting of sec. 7A of Basic Law: The Knesset, there is no clear, unambiguous answer to this. In any case, as presented above, the special importance of the fundamental constitutional right to vote and to be elected obligates us to strict criteria whose bottom line is that when there is doubt, there is no doubt. Therefore, and for the reasons stated in the opinion of my colleague the President, I am of the opinion that what has been adduced before us is insufficient for ordering the disqualification of the candidacy of Cassif, the Hadash-Ta’al list, and the Ra’am-Balad list.

15.       One parenthetical objection: In the matter of the Balad party, the Attorney General noted that “were the Balad party running independently … there would be reason to carefully consider its disqualification”. However, “in view of the fact that under the prevailing legal situation, there is no possibility of disqualifying only half of a list (as opposed to disqualifying an entire list or disqualifying specific candidates on the basis of evidence relating to them personally), and in view of the fact that there are almost no arguments against the Ra’am list, it is necessary to examine whether the existing evidence suffices to justify disqualifying the joint list, in view of the case law of the honorable Court in regard to the need to severely limit such a disqualification”. My colleague the President did not expand upon that matter, having found other reasons for not ordering the disqualification of Balad (although she attributed weight to the fact that we are concerned with a joint list). For my part, I find the present legal situation very problematic, when a party that prima facie meets the requirements of one of the causes for disqualification can join with another party such that the joint list provides it with a “city of refuge”. This should be given consideration when and if the need to address this question arises in the future.

16.       In conclusion, where my opinion accepted, we would overturn the Election Committee’s decision in EDA 1806/19; deny the appeals in EA 1866/19 and EA 1867/19, and grant the appeal in EA 1876/19, and hold that Dr. Ofer Cassif, Dr. Michael Ben Ari, Advocate Itamar Ben Gvir, the Hadash-Ta’al list and the Ra’am-Balad list are not barred from standing for election to the Knesset.

 

Justice A. Baron:

            I concur in the comprehensive opinion of President E. Hayut, both in the conclusion she reached in each of the proceedings before us and in her reasoning. I will briefly add my view of the disqualification of the candidacy of Dr. Michael Ben Ari (hereinafter: Ben Ari) for election to the 21^st Knesset, in which we are concerned with an exceptionally extreme step, akin to a “doomsday weapon”.

            The racist statements in the warp and weave of all of the recorded statements of Ben Ari cry out from the page and scorch the ears. Words are not “just” words. There are times when words are also acts, and in the case of Ben Ari’s statements they constitute a clear act of incitement to racism. Ben Ari makes improper use of words to arouse hatred against the Arab public, while portraying all Arabs as murderers and bitter enemies. His statements delegitimize an entire community, instigate conflict and strife, and even call for actual violence against Israeli Arabs. Moreover, we were presented with a solid evidentiary foundation that clearly shows that we are concerned with a severe, extreme case of incitement to racism. The racist statements are explicit, systematic (some 40 instances since 2017 alone), constitute a dominant characteristic of Ben Ari’s statements, and gain wide exposure in the media and on the social networks.

            The principle of freedom of expression, and particularly freedom of political expression, is a cornerstone of a democratic regime. According to this principle, “freedom of expression is not just the right to say or hear what is generally acceptable. Freedom of expression is also the freedom to express dangerous, irritating, deviant ideas that the public reviles and despises” (HCJ 399/85 Kahane v. Broadcasting Authority [23], p. 280). Words and statements can thus find refuge under the aegis of freedom of expression even when they express marginal ideas, and even when they arouse disgust, but given their “critical mass”, as noted above, Ben Ari’s words constitute incitement to racism and therefore undermine fundamental principles of democracy. As the case law of this Court has already made clear, “one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14). In this regard, I would note that in my opinion, as well, incitement to racism does not merit any protection, and therefore there is no place for applying a “probability test” as a condition for the application of the cause under sec. 7A(a)(2) of Basic Law: The Knesset.

            Ben Ari did not apologize for his statements and did not retract them. And if that were not enough, even his explanations continue to reflect a racist attitude toward the Arab public. According to Ben Ari, his recorded statements are not directed against the entire Arab public, but only toward those among it who are not “loyal” to the State of Israel. However, the recordings deliver a clear message that any Arab is disloyal, a traitor, and enemy, and dangerous by definition. We are, therefore, concerned with an extreme case that requires Ben Ari’s disqualification from participating in the elections for the Knesset.

 

Justice D. Mintz:

            I concur in the opinion of my colleague the President in regard to the partial granting of the appeal in EA 1866/99 and with the holding that Ben Ari is barred from participating in the elections for the 21^st Knesset, which is not the case in regard to Ben Gvir. I also agree that the appeal in EA 1867/19 should be denied, and that it should be held that the Hadash-Ta’al list is not barred from contending in the elections for the 21^st Knesset. However, I cannot agree with the position in the matter of overturning the Election Committee’s decision in EA 1876/19 in the matter of the Ra’am-Balad list and in EDA 1806/19 in the matter of MK Ofer Cassif. In my view, those decisions should be left standing, and we should hold that the Ra’am-Ta’al list and MK Cassif are barred from participating in the elections for the Knesset, as I shall explain.

Foreword

1.         The starting point for this discussion is that the restrictions upon the constitutional right to vote and to be elected to the Knesset must be minimal, and they must protect the most vital interests of the state (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], pp. 802-803). This Court has recognized the justification for limiting those rights even before an express provision was enacted to permit the disqualification of a candidate or list from participating in the elections for the Knesset when it was long ago held that the right to vote and to be elected can be limited in order to protect the very existence of the state (EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the 6^th Knesset [8], p. 387) (hereinafter: the Yeredor case); EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset [4]) (hereinafter: the first Neiman case)). And as Justice J. Sussman stated: “Just as one need not consent to be killed, so a state need not agree to be annihilated and wiped off the map.” (the Yeredor case, p. 390). The restriction of rights is justified in the name of the right of a democracy to defend itself against those who would seek to employ democratic tools for the purpose of negating the very existence of the state, harm its fundamental principles or advance anti-democratic objectives (EDA 9255/12 Central Election Committee v. Zoabi [3], para. 8 of the opinion of President A. Grunis); EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi [6], para. 7 of the opinion of President M. Naor) (hereinafter: the Zoabi case).

2.         The desire to prevent the use of democratic tools to advance anti-democratic objectives that undermine the existence of the state stood at the basis of the enactment of sec. 7A of Basic Law: The Knesset (hereinafter also: the Basic Law), to which various amendments were made over the years. The last, in 2017 (Basic Law: The Knesset (Amendment no. 46), 5777-2017 (hereinafter: Amendment no. 46)) clarified that a candidate could be disqualified if his objectives or actions, “including his expressions”, included the negation of the existence of the State of Israel as a Jewish and democratic state, incitement to racism or support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The legislature had its say and defined the boundaries of the right to vote and to be elected in light of the basic and most vital principles for the existence of the state.

3.         It should be noted that sec. 7A of the Basic Law is not the only legal provision that restricts the use of a right granted by democracy in order to prevent harm to the basic, most vital principles for the existence of the state in general, and its existence as a Jewish and democratic state in particular. This purpose is also expressed in the framework of sec. 5 of the Parties Law, 5752-1992, which denies the possibility of registering a party, inter alia, for the causes enumerated in sec. 7A of the Basic Law. Section 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 defines the limits of the material immunity granted to an elected official by virtue of his office in a manner similar to that in sec. 7A (HCJ 11225/03 Bishara v. Attorney General [13], pp. 306-307). As the President also noted, the Basic Law was amended in 2016 to include a provision authorizing the Knesset to end the tenure of a member of the Knesset for incitement to racism or for supporting armed struggle against the State of Israel (the cause of negating the existence of the State of Israel as Jewish and democratic was not included in the framework of that provision in view of its being general and more ambiguous, and upon the presumption that the Knesset plenum would have difficulty applying it (see: HCJ 5744/16 Ben Meir v. Knesset [12], para. 29 of the opinion of President E. Hayut).

4.         These supplementary provisions define a clear boundary beyond which actions, objectives and expressions are not legitimate for elected representatives and for a party or list of elected representatives. The gates of the house of representatives are not open to those who seek to harm the character of the State of Israel as Jewish and democratic (including the cause of “incitement to racism”, which constitutes a special case of harm to the democratic foundations of the state) or to support an armed struggle against it and thus to support a threat to its very existence. What is concerned are actions that do not afford material immunity for those who succeeded in being elected to the house of representatives. Some of those causes also permit the termination of the tenure of those who seek the state’s harm. The underlying premise is that a person who seeks to take an active part in Israeli democracy and its institutions must accept the principles of its existence and the democratic “rules of the game” (see, for example: EDA 11280/02 Central Elections Committee v. Tibi [1], p. 23 (hereinafter: the Tibi case)). This, even though such actions or expressions may sometimes fall within the bounds of freedom of expression granted to every person in the state. In other words, what is permitted to every person is not necessarily granted to a person who seeks to be elected to the legislature. The reason for this is clear: the principle of freedom of expression grants every person the freedom to express himself even in a manner that contradicts the principles of the Jewish and democratic regime of the State of Israel (within the bounds of the law). However, permitting a person who voices such ideas to be elected to the legislature may lead to a situation where he will “import” his ideas into the legislature and thus undermine the foundations of the regime upon which the state rests by implementing or realizing his ideas. In this regard, Justice T. Strasburg-Cohen nicely distinguished the two (in the Tibi case, p. 70):

It would be appropriate to note that Israeli democracy does not prevent Knesset Member Bishara from expressing his views, which he terms “theoretical”, “philosophical”, or “historical”, from any platform, in accordance with the law. However, as far as membership in the Knesset is concerned, those views that are part of his political views, and he seeks to implement and realize them, inter alia, by means of his membership in the Knesset. Therefore, those views greatly deviate from theory, philosophy, and history and cross into the area of political activity.

 

The Causes for Disqualification and Amendment no. 40 of the Basic Law

5.         The criteria established in the case law in regard to the implementation of the provisions of sec. 7A of the Basic Law were clarified at length by the President, and I do not intend to dwell upon the matter. I will only say a few words about the distinction in the framework of this provision between disqualifying a candidate and disqualifying a list from participating in the Knesset elections. Thus, while the section establishes that “a list of candidates shall not participate in elections to the Knesset … should there be explicitly or implicitly in the goals or actions of the list …” (emphasis added – D.M.) one of the causes enumerated therein. The wording in regard to the disqualification of a candidate is somewhat different. As it reads at present, after Amendment no. 46, the disqualification of a candidate shall be possible “should there be in the actions of the person, including his expressions” one of the causes enumerated in the section. This difference is no trifling matter.

6.         As we know, a law is interpreted in accordance with its language and purpose. First, the starting point of interpretation is the language of the law, where the written text should be given the meaning that its language can carry (Aharon Barak, Interpretation in Law – Interpretation of Statutes 81 (1993) (Hebrew) (hereinafter: Interpretation in Law); HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner [24], para 9). The language is the framework for the work of the interpreter, and he may not breach it (HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset [5], p. 702). When the text tolerates different meanings, the interpretation that realizes its purpose should be chosen (Interpretation in Law, 85). In the present matter, as noted, Amendment no. 46 added the words “including his expressions” to sec. 7A of the Basic Law in regard to a candidate. According to the plain meaning, statements that can undermine the existence and fundamental principles of the state are sufficient to lead to the disqualification of a candidate from being elected to the Knesset, and there is no need for acts. That is also the interpretation that is consistent with the purpose of the section, which is intended to contend with those who seek to employ democratic tools in order to further anti-democratic objectives.

7.         Indeed, as the President noted, the Explanatory Notes to the bill state that the amendment was not intended to change the case law of the Court “according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state” (H.H. Knesset, 675). It is also important to explore the legislative history of legislation, through which it is possible to ascertain the legislative intent and purpose (Interpretation in Law, 161; CA 4096/18 Chacham and Or-Zach v. Assessment Officer [26], para. 20). However, I cannot concur with the position that the language of the amended provision is meaningless and that what has been is what will be. As has been said: “The legislative purpose, and certainly the legislative history, cannot give the law legal meaning that it cannot bear” (Interpretation in Law, 353). Indeed, there is nothing in Amendment no. 46 that would violate the principle that the provisions of sec. 7A of the Basic Law be interpreted narrowly. I also accept that the words of a candidate or the Knesset, as well as his deeds, be examined meticulously, inasmuch as disqualification remains an extreme act that should be employed only in exceptional circumstances, as has been held in the past (see, e.g., EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset [2], para. 3 (hereinafter: the Balad case)). Nevertheless, that does not mean that the amendment does not affect the causes for disqualification established under sec. 7A of the Basic Law as we knew them in the past.

8.         First, one cannot ignore that in the past, the view was expressed in the case law of this Court that “expressions”, as opposed to “actions” do not fully fall within the compass of sec. 7A of the Basic Law. Thus, for example, in the Zoabi case, Justice H. Melcer noted: “An action in Israel’s sub-constitutional law does not generally include expression, and therefore, when the legislature sought to treat of expressing an opinion orally or in writing, it did so separately, alongside the action, or defined: “an action including an expression” (para. 2b of his opinion; and compare para. 121 of the opinion of Deputy President Rubinstein in the same matter). If, at the time, there was any doubt whether “expressions”, as distinct from “actions”, could be included under the provisions of sec. 7A of the Basic Law, then since the enactment of Amendment no. 46 of the Law, it has been expressly clarified. The legislature made itself unambiguously clear that the power of a word is as good as the power of an action. As was said: “Death and life are in the hand of the tongue” (Proverbs 18:21), “Does the tongue have a hand? This comes to teach us that just as the hand can kill, so the tongue can kill…” (Babylonian Talmud, Arakhin 15b).

9.         Second, although the line separating “expression” and “action” is not always clear, we cannot ignore that the interpretive principles outlined in the past in regard to the causes for the disqualification of a candidate placed emphasis on the candidate’s actions as against his expressions. Thus, for example, “actions” that must be given severe, extreme expression was spoken of (the Tibi case, p. 17). As for the third cause, which concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel, it was held that such “support” can be “material” or “political” (the Tibi case, p. 26; the Balad case, para. 7). Thus, Amendment no. 46 has the potential to change the criteria that were developed for the disqualification of a candidate, which have, until now, been based upon those established for the disqualification of lists.

 

The Probability Test

10.       Another matter that requires examination, and which should be addressed prior to diving into the appeals before us, is the question of the applicability of “the probability test” noted by the President, that is, whether the participation of a party or a candidate can be prevented from participating in the elections where it has not been proven that there is a probability that they may actually realize one of the causes established under sec. 7A of the Basic Law. This question already arose in the first Neiman case, which was adjudicated prior to the enactment of sec. 7A of the Basic Law, in regard to the disqualification of a list. In that matter, Justice A. Barak expressed his view that although the matter was not expressed in either the majority or minority opinions in the Yeredor case, the disqualification of a list is possible only when there is a “reasonable possibility” that the party’s platform will be realized in practice. However, after the enactment of sec. 7A of the Basic Law, it was clearly established in EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12^th Knesset [5], 188 (hereinafter: the second Neiman case) that:

In setting forth the principles of sec. 7A, the legislature did not require the existence of a clear and present danger, the probability of danger arising from the objectives and conduct of the party in question, or any similar test that looks to the connection between the condemned action and the possible results. Through this, the legislature changed the legal status until the enactment of Basic Law: The Knesset (Amendment no. 9).

            Thus, in enacting sec. 7A of Basic Law: The Knesset, the legislature abandoned the possibility of “the probability test”. In this regard, I join in the comments of my colleague Justice M. Mazuz. The provisions of the Basic Law contain no requirement for a reasonable possibility of the actual realization of the threat arising from the actions or platform of the list or its objectives (or from the actions of a candidate or his objectives, under the current wording of the section). There is firm support for the view that the matter was decided long ago in the second Neiman case, despite the questions that later arose in the Tibi case. In brief, I would note that I also find great substance in the view of Justice E. Mazza in the Tibi case (pp. 98-99) that making disqualification contingent upon the probability test could render sec. 7A devoid of all content, inasmuch as the more extreme, severe and outrageous the message, the less the probability of its actually being realized.

 

“Critical Mass”

11.       The case law of this Court has established that in order to approve a disqualification decision, the Court must have before it evidence that is “persuasive, clear and unambiguous” (the first Neiman case, pp. 250-251; the second Neiman case, p. 197). When the Court is convinced that such evidence has been laid before it, then the material thus constitutes the critical evidentiary “mass” required in this regard (see: the Tibi case, p. 42). This evidence can satisfy the Court as long as it is convinced of its truth, as the Court does in every matter given to its decision.

            This is not a quantitative but a qualitative test. If, for example, the Court is convinced by a single piece of evidence (and unlike this case in which there is a compendium of evidence) that can decide the matter in a certain direction, then it can base its decision thereupon. Only then will that single piece of evidence constitute a “critical mass”. As opposed to this, sometimes there is an accrual of many pieces of evidence whose force does not tip the scales and it will not constitute a “critical mass”. There is nothing actually new in this (see, for example, in the various proceedings: CrimA 7007/15 Shmil v. State of Israel [27], para. 22; CA 8742/15 Astrolog Publishers Ltd., v. Ron [28], para. 44; Yaakov Kedmi, On Evidence, Part IV, 1761ff. (2009) (Hebrew)). Indeed, the force of the evidence required for a decision changes in accordance with the category of the matter given to the Court’s decision. Sometimes, evidence that banishes all reasonable doubt is required. Sometimes, evidence that tips the scale of probability is required. Sometimes, “administrative” evidence of varying degrees is required. This, too, is not new (see, for example: CrimA 961/16 Alharoush v. State of Israel [28], para. 15; AAA 3326/18 A. v. Director of Firearm Licensing [30], para. 20). The present matter requires highly persuasive administrative evidence, and not necessarily a large amount of evidence. It is not the quantity that is decisive, but the quality.

            And now to the matter before us in the proceedings in which I disagree with my colleagues.

 

EA 1806/19 In the Matter of Cassif

12.       As noted, my colleagues decided not to disqualify Cassif’s candidacy for the Knesset elections, and I cannot concur. In my view, an examination of the material presented to us reveals that there is no room for doubting that Cassif’s statements clearly cross the legitimate boundaries defined in the framework of sec. 7A of the Basic Law. Thus, inter alia, Cassif published the following:

Uniting the democratic forces for a struggle against the Judeo-Nazism that is taking over our society is not enough, although it is certainly needed, there is a necessity for changing the methods, you don’t sing songs against fascism, you fight (report on Channel 20, May 22, 2016, quoting Cassif).

            In another report, he is heard saying that “in the Israeli discourse that the current Israeli government has created, killing Arabs is legitimate. This is how one descends into the abyss of what happened in Germany 80 years ago” (report of Channel 20 of April 12, 2018). Similarly, in regard to the Hamas, which is known to be a terrorist organization that is waging a murderous war of terror against Israel (and see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior [31], para. 10 of the opinion of Deputy President M. Cheshin), Cassif is quoted as saying that the organization is a “political party” (report on Channel 20 of April 11, 2018). In addition, in an article on the Makor Rishon website from Feb. 7, 2019, it is reported that in the course of an interview with him, he stated that the State of Israel must not be a Jewish state. In addition to those statements, his clear, unambiguous statements expressed in a personal interview in the Ha’aretz supplement of Feb. 8, 2019, entirely fall within the scope of two of the causes for disqualification under sec. 7A: negation of the existence of the State of Israel as a Jewish and democratic state, and support for armed struggle by a terrorist organization against the State of Israel. Thus, Cassif presented an unadorned statement of his worldview, which includes the revocation of the Law of Return, 5710-1950 (hereinafter: The Law of Return) (p. 28 of the interview) and changing the symbols and anthem of the state (p. 26 of the interview).

            One cannot ignore that it is his position that The Law of Return should be revoked, as if it were a stumbling block rather than a law that expresses a supra-constitutional principle grounded in the Declaration of Independence, the Jewish people’s right to self-determination, and its connection to its homeland (see, for example: HCJ 7625/06 Rogachova v. Ministry of Interior [31], para. 28 of the opinion of President M. Naor; Ariel Bendor & Elichai Shilo, Israel as a Jewish State: Constitutional Significance, in Strasburg-Cohen Volume 160 (2017) (Hebrew)). Cassif’s clear statements fall completely within the bounds of statements that express the negation of the most nuclear foundations of the State of Israel as a Jewish and democratic state, as defined long ago in the Tibi case.

13.       However, these statements are dwarfed in their intensity in view of what Cassif stated about harming IDF soldiers. This is what he said:

Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable (p. 26 of his interview with Ha’aretz).

            We are concerned with matters that are most explicitly included in the cause for disqualification for support for armed struggle against the State of Israel. The fact that harming soldiers, in certain circumstances, is viewed differently from harming civilians under international law, or that it can be defined, according to Cassif, as “guerilla warfare”, does not change the fact that his statements explicitly express granting legitimacy and support for armed struggle against the State of Israel in accordance with the cause of disqualification under sec. 7A of the Basic Law. We are concerned with clear, unambiguous statements that cannot otherwise be interpreted or explained. There is “cold comfort” in that Cassif does not see such harm as “something wonderful, delighting, or desirable”.

14.       I do not find any real repudiation of these strong statements in Cassif’s statements before the Central Elections Committee or in the affidavit he submitted to the Committee, other than a denial of things attributed to him in the Makor Rishon newspaper (sec. 10 of the affidavit submitted to the Elections Committee), which, in any case, can be given only minimal weight in view of their being “second hand”. Cassif tried to place his extreme statements in a “political” context (pp. 29-30 of the transcript of the Elections Committee hearing of March 6, 2019), but this does not constitute a retraction of his harsh statements. In view of the severity and clarity of the statements, a general declaration alone, as Cassif expressed in para. 9 of his affidavit to the Elections Committee, is insufficient: “The request to disqualify my candidacy is a factual distortion and misleading interpretation of my words, and I therefore completely deny what is cited there”. It might have been expected that Cassif would clarify what that “factual distortion” was, and what misleading interpretation was given to the words. But other than this general, vague statement, what Cassif declared is insufficient to refute the existence of the solid evidence grounding the causes for disqualification.

            Cassif indeed notes, in a general way, in his affidavit that he “opposes all forms of violence against any person” (Cassif’s affidavit of March 3, 2019, para. 11). However, he in no way retracted the things he said in that interview – and not what he said in regard to harming IDF soldiers, in particular. On the contrary, in his affidavit, Cassif emphasized that in that interview in the Ha’aretz supplement he noted that he opposes harm to innocent civilians (ibid.). And as for harming IDF soldiers? Cassif’s silence is deafening.

15.       In his affidavit, Cassif reiterates his explanation that the statements attributed to him are, at most, “isolated” statements that “were made in order to sharpen a particular idea”, that the style of expression that included the term “Nazi” is not “characteristic” of him in general, that the statements were made in the heat of political debate, and that we are merely concerned with metaphor (para. 13 of the affidavit to the Elections Committee of March 3, 2019). However, it cannot be said that Cassif denies those expressions, retracts or denounces them, but at most, he explains them with various excuses. In the hearing before the Elections Committee, as well, Cassif did not express a clear, concrete disclaimer as to what he said, and in particular, I did not find any clear disclaimer of the statement that there is legitimate and moral justification for harming IDF soldiers. In the end, Cassif was kind enough to tell the Committee that he opposes violence (p. 34 of the transcript of the Elections Committee hearing of March 6, 2019). But that, as noted, is not enough. General statements according to which he rejects and opposes violence are insufficient in view of his sharp, clear statements in regard to harming IDF soldiers. According to Cassif’s approach, harming soldiers is not a form of “violence”. Moreover, when he was expressly asked in the Elections Committee hearing: “When you justify terrorist attacks upon IDF soldiers, is that not violence?” (ibid.), he did not provide a pertinent answer. In response to the question, he diverted to the causes for disqualification: “We are speaking here the language of the law, and we are talking about whether there are causes for my disqualification in light of Basic Law: The Knesset…”, while he repeated his general position that “I never even hinted at support for armed struggle or violent struggle at all. That is one cause that I do not meet”.

16.       Even Cassif’s repeated excuse that he made the statements as a “regular citizen” and not as a public representative, and that he would “not necessarily” use those expressions if he were elected to the Knesset (para. 13 of the affidavit submitted to the Elections Committee), do not work to his benefit. Cassif is currently being examined in regard to what he has already said, and upon opinions he has already expressed as a citizen. I would note in this regard that it is clear that the provisions of the law look to the future and do not seek to “punish” a candidate for his conduct in the past, but rather to contend with the fear of an elected official exploiting his status to perform improper acts (see: the Tibi case, p. 64). However, in order to answer the question whether the actions of the list or a candidate meet one of the causes for disqualification listed in sec. 7A of the Basic Law, the evidence that has accumulated in regard to that list or candidate must be examined, and this, naturally, often means before they were elected to the legislature. How can one accept the argument that Cassif should not be held accountable merely because we are concerned with statements that he made as a private individual? Every statement and action of a candidate (who has not served as a member of the Knesset in the past) is examined with consideration for the fact that the person concerned is a private individual seeking that the gates of the legislature be opened before him. Every such candidate is examined with consideration for things that he said before being elected as a public representative, while the accumulated material will always be from the period prior to his candidacy.

17.       Moreover, the argument by Cassif’s attorney that only “ideas on an intellectual basis” were concerned, cannot be of help. Statements supporting armed struggle against Israel and the negation of the existence of the State of Israel as a Jewish state cannot be explained away by saying that they concerned an “intellectual” debate (see, for example, the Tibi case, p. 70, which was quoted above in para. 4). This is all the more so in view of Amendment no. 40 to Basic Law: The Knesset of 2017, which made it clear, as noted, in accordance with the interpretive rules set out, that a candidate will be disqualified if his objectives or actions, “including his expressions”, constitute a negation of the existence of the State of Israel as Jewish and democratic, incitement to racism or support for armed struggle by a hostile state or terrorist organization against the State of Israel.

18.       As noted (in para. 4, above), the provisions of sec. 7A of the Basic Law create a distinction between the legitimate right of every person to express “ideas on an intellectual basis”, whatever they may be, from every platform (subject to very limited constitutional restrictions) and the statements of a candidate for election to the Knesset, where such a person seeks to move to the area of political activity. In accordance with the dictate of the legislature, theoretical ideas are examined from a different perspective when a person seeks to realize them by means of membership in the Knesset. Were Cassif’s statements examined as of an ordinary citizen, one might say that they are infuriating and enraging or that one should forcefully take exception to them, but they are protected as free speech. However, once Cassif sought to be elected to the Knesset, we must examine whether we are concerned with statements that express support for armed struggle by a terrorist organization against the state of Israel or whether they negate the existence of the State of Israel as a Jewish state, in the sense of denying its core foundations as established in the Tibi case. If the answer is positive – and as noted, I find it difficult to think otherwise – the candidate cannot rely upon the argument that the statements were made by him as “a private person” and that he is, therefore, exempt from answering for them. That is so in view of the purpose of sec. 7A, which, as noted, limits the use of the right granted by democracy, and in the present matter, the right to vote and to be elected, in order to prevent harm to the most basic, essential principles of its existence.

            In any case, once Cassif chose to clarify in his affidavit that he would “not necessarily” use the same expressions once elected to the Knesset (para. 13 of his affidavit), the excuse that the statements were made by him as a private individual cannot be maintained. Cassif is even unwilling to declare that those severe statements will no longer leave his lips as a public representative. Cassif himself made it clear that even after being elected, it is not necessarily the case that he will not repeat those things. In so doing, Cassif also declares that he refuses to accept the rules of the game – even if ultimately elected to the legislature (which actually occurred while these lines were being written).

19.       Indeed, not infrequently, a candidate will seek to “fix up” the positions that he publicly flaunted after he is threatened with disqualification, and in the framework of disqualification proceedings he will seek to explain that things are not what they seem. However, as a rule, a candidate’s request to deny his public statements – statements that often are those that paved his way to election to the Knesset and upon which the public trust in him was based – should be taken with a grain of salt. Dissociating from such statements in the disqualification proceedings may show those “corrected” positions to be stated solely to evade the verdict, as lip service, and not reflecting an authentic position (see: the opinion of Justice E. Rubinstein in the Zoabi case, para. 48). Cassif’s statements should be measured by the same criterion by which Ben Ari’s statements were measured. The two should not be distinguished. In a certain sense, Amendment n. 46 closed the gap between the evidentiary requirement for proving the causes for disqualification in regard to negation of the existence of the State of Israel as Jewish and democratic and support for armed conflict against the State of Israel and that of the cause of incitement to racism. Just as incitement to racism generally disqualifies by means of verbal statements (as also noted in para. 47 of the position of the Attorney general in EDA 1866/19), so too, the other causes disqualify through expression. If not identical, the evidentiary level of all the causes for disqualification should be similar.

            Just as Ben Ari’s statements disqualify him from running for the Knesset – despite his claim that he “is not a racist”, so Cassif’s words should disqualify him – despite his general claim that he “opposes violence” of any kind. The result should be identical for both.

20.       However, in certain circumstances, the gates can be opened to a candidate who retracts his statements. This, for example, if the candidate convinces that the evidence presented refers to old events, while declaring that he has changed his ways (that is the situation in the matter of Ben Gvir). A candidate who changes his ways is like a “penitent”, of whom the sages said: “In the place where penitents stand, even the wholly righteous cannot stand, as it is stated: Peace, peace upon him who is far and him who is near” (Babylonian Talmud, Berakhot 34b). Such a person is unlike one who “confesses but does not repent” who is likened to one who “immerses himself with a reptile in his hand”:

R. Adda b. Ahava said: To what can one compare a person who has sinned and confesses his sin but does not repent? To a man holding a reptile in his hand, for even if he immerses himself in all the waters of the world his immersion is useless for him. But if he throws it away, then as soon as he immerses himself in forty se'ahs of water, his immersion is immediately effective, as it is said: “He who confesses and gives them up will find mercy” (Babylonian Talmud, Ta’anit, 16a).

            A fortiori in the case of Cassif, who does not even confess his expressions. Even before the Elections Committee, and in his affidavit as well, there is no retraction of his words, nor a declaration that he has changed his path. The paltry statements that Cassif uttered do not come close to the vitriolic statements that he uttered from a public platform. On this it has been said: “He who covers up his faults will not succeed,” as opposed to “He who confesses and gives them up will find mercy” (Proverbs 28:13).

21.       The State of Israel, as a Jewish and democratic state, is obligated to defend itself and to act against those who oppose it. My colleagues defend Cassif, and it has, indeed, been said, “Judge your neighbor justly” (Leviticus 19:15). Relying upon the Gemara in tractate Sanhedrin, Rashi explains: “Judge your neighbor favorably”. However, the Siftei Chachamim [Shabbethai ben Joseph Bass (1641–1718)] adds: “That is to say, specifically when he is your neighbor judge him favorably”. In other words, when he behaves like your neighbor. In my opinion, there is no doubt that the terrible things said by Cassif do not allow us to judge him favorably, and they clearly and unambiguously meet the causes for disqualification that seek to protect the state against its destroyers and block their path to being counted among its legislators.

22.       To summarize this section, as noted, Cassif presented the core of his social and political approach in the interview with him and before the Committee, and his extreme, severe and unambiguous statements express dominant, central, core characteristics of his approach. We are concerned with persuasive, clear evidence that constitutes a “critical mass” that indicates support for armed conflict and terror against Israel, and negation of the existence of the State of Israel as a Jewish state. The force of the evidence is bolstered by the absence of clear, concrete repudiation of his statements by Cassif.

            In my opinion, all of the above unequivocally suffices to ground the causes for disqualification in sec. 7A in accordance with the criteria and proper interpretation as delineated above and that are long established by this Court.

 

EA 1876/19 In the matter of Balad

23.       Here too, as opposed to the view of my colleagues, I am of the opinion that that there is no room for doubt that the Balad list openly undermines the State of Israel’s existence as a Jewish and democratic state and openly supports armed struggle by a terrorist organization against the State of Israel.

24.       The evidence presented includes various statements and actions by members of Balad, some from the immediate past. Additionally, the petitioners requesting Balad’s disqualification referred to Balad’s activity in the past, and to the statements and actions of it former head – MK Azmi Bishara – and to the relationship between its activity and its current Knesset members to Balad’s former leader. In addition to all of that, it was argued that the “State of all its Citizens” bill (hereinafter: the bill) that the Balad Knesset members sought to present before the 20^th Knesset last June makes it unequivocally clear that Balad expressly denies the existence of the State of Israel as a Jewish State.

            In this regard, and even were I of the opinion that no significant weight should be accorded to the other evidence to which I will refer later, I am of the opinion – like position taken by the President in para. 58 of her opinion, with which I fully concur – that no one can deny that the bill expresses a negation of “nuclear characteristics” of the State of Israel as a Jewish state. Presenting the bill crossed the line sharpened in the Tibi case, which distinguished between one who supports a “state of all its citizens” in the sense of achieving civil equality and one who seeks to negate the minimal, core characteristics of the State of Israel as a Jewish state. Moreover, after reviewing the opinion of my colleague Justice Mazuz, I would add that, in my opinion, not only does the bill express a negation of “the nuclear characteristics” of the State of Israel, as noted, but even denies the existence of the State of Israel as “the State of the Jewish people in the national sense”. This, in reference to the identity of the state as a place where the Jewish people realizes its right to self-determination, as my colleague so well expressed in his opinion.

            In order to understand the consequences of presenting this bill in regard to examining the disqualification of the list, I will expand somewhat on the prior proceedings in the matter of Balad.

25.       The matter of Balad was addressed in the elections for the 15^th Knesset (EA 2600/99 Ehrlich v. Chair of the Central Elections Committee [33] (hereinafter: the Ehrlich case)), and in the elections for the 16^th Knesset (the Tibi case), as well as in the elections for the 18^th Knesset (the Balad case). Already in the Ehrlich case in 1999 – which addressed the matter of MK Azmi Bishara, who led Balad, along with the matter of the list (when the provisions of the law permitted only the disqualification of a list and not a candidate) – it was made clear that, on their face, Bishara’s statements at the time, declaring that the Jewish people does not have a “right to self-determination”, constituted a denial of the existence of the State of Israel as the state of the Jewish people. Indeed, it was ultimately found that Balad’s candidacy should not be disqualified despite coming “dangerously close” to the line that cannot be crossed that is defined in sec. 7A of the Basic Law.

26.       In the Tibi case (in the framework of which the matter of the party was examined in a manner identical to that of Bishara, given the “powerful” connection between them), it was found that the actions attributed to Bishara in regard to the negation of existence of the State of Israel as a Jewish state and in regard to support for armed struggle were at the heart of its purposes and constitute a dominant objective of its activity that constituted a political potential that was realized in repeated activity and with great force. However, persuasive, clear and unambiguous evidence against Bishara was not found, and thus not against the Balad list, when it was held that Bishara’s approach as to the State of Israel as a “state of all its citizens” “comes dangerously close to the possibility of negating the existence of the State of Israel as a Jewish state”, but it was not found that the “border had been crossed” (the Tibi case, p. 42). In addition. It was not found that there was sufficient evidence in regard to support of armed struggle, although there was some “doubt” in that regard (ibid.).

27.       Some clarification is required in this regard. In the Tibi case there was a difference of opinion as to the meaning of the phrase “a state of all its citizens” that appears in Balad’s platform. It was held that the principle of “a state of all its citizens” can take various forms, and that a purpose that sees Israel as “a state of all its citizens” does not inherently negate the existence of the State of Israel as a Jewish state. Thus, a person who acts to achieve the purpose of “a state of all its citizens” in the sense of guaranteeing equality among citizens is not the same as a person who employs that principle in order to infringe the rationale grounding the establishment of the state and thereby negates the character of the State of Israel as the state of the Jewish people (the Tibi case, p. 22).

28.       The minority was of the opinion that the evidence, taken in its entirety, showed that the expression “a state of all its citizens” served as a codeword for “abolishing Zionism, abolishing the State of Israel as the national home of the Jewish people, and abolishing the state as a Jewish state and replacing it with another state, if not more than that” (para. 2(b) of the opinion of Deputy President (emer.) S. Levin), and that striving for “a state of all its citizens” was intended to strip the State of Israel of Zionism and of its Jewish national character (para. D of the opinion of Justice E.E. Levi).

29.       As opposed to that, the majority, as noted, did not find that the meaning of “a state of all its citizens” in regard to Bishara “crosses the line” in regard to the negation of the existence of the State of Israel as a Jewish state. This, after finding that Bishara recognized the right of every Jew to immigrate to Israel, did not argue for the repeal of the Law of Return, did not deny the centrality of the Hebrew language as the language of the state, and did not oppose the holidays and symbols of Israel (also see: para. 54 of the opinion of President E. Hayut).

            In other words, in the Tibi case, as well, where it was found that striving for the objective of “a state of all its citizens” in regard to Bishara and Balad was close to the disqualifying boundary, a remedy was found in the form of non-negation of the core principles of the State of Israel as a Jewish state. The Court reiterated this position that the principle of “a state of all its citizens” in Balad’s platform does not ground a cause for disqualification in the Balad case. There, too, Justice E.E. Levy, dissenting, noted that in his opinion, the vision of Balad in regard to “a state of all its citizens” was nothing but a guise for the establishment of an Arab national state in all the territory of the Land of Israel.

30.       Thus, when examining the expression “a state of all its citizens” in the framework of Balad’s platform in the past, this Court was forced to cast about in order to discover what inhered in the concept and what meaning to give it. Where a doubt was found, the doubt worked in favor of approving the list, in view of the criteria established in regard to disqualifying a list. However, now that Balad has clarified – in the framework of dominant, significant, public and clear political activity – the significance of the expression “a state of all its citizens” for it, and the steps that it is willing to take in order to realize that vision, it can no longer be said that we are concerned with an ambiguous term. Now, following the presentation of the bill, it has been made absolutely, unambiguously clear that for this list “a state of all its citizens” means annulling the principle of return, denying the principle by which the state’s primary symbols reflect the national revival of the Jewish people, and denying the Hebrew language as the primary language of the state. It cannot now be said, by any criterion, that we are not concerned with the negation of minimal, nuclear elements of the State of Israel as a Jewish state, as held in the Tibi case.

31.       The fact that the bill was ultimately not brought before the plenum – only because on June 4, 2018 the Knesset presidium decided upon the drastic step of not approving its presentation to the Knesset – cannot be accounted to the list’s benefit, which argues that it is being retaliated against merely because it raised a theoretical “idea”. We are not concerned with just an “idea”, but rather with a concrete act – submitting a bill that sought to ground principles that undermine the existence of the State of Israel as a Jewish state (and also see in regard to expression by means of submitting a bill: the second Neiman case, p. 196). In view of this bill, I also find problematic the claim by the Balad list in its appeal that the requests for disqualification were not based upon a clear, direct statement, its publications, or official notices. What is a bill if not a “clear, direct statement” that expresses the values of the list and the principles that it pursues in the most simple, “clean” manner? What need do I have in looking for publications, official notices and so forth given the submission of a bill that seeks to undermine the most nuclear foundations of the state as a Jewish state? MK Mtanes Shehadeh’s “excuse” in his affidavit (affidavit of March 3, 2019 that was presented to the Elections Committee) that the bill was submitted only to “challenge the Nation State Basic Law and to hold a public debate on the issue” changes nothing in this regard or “kosher” this clear public step. On the contrary, even if the bill was submitted out of a sense of anger and grievance, I do not see how that could act in the list’s favor. Even if the members of the list presented the bill in a moment of rage, the saying goes: “By three things may a person's character be determined: By his cup, by his purse, and by his anger” (Babylonian Talmud, Eiruvin 68b). Rashi explains there: “In his anger – that he is not too hot tempered”. It is precisely when one is roiled and angry that a person is judged, and not when he is calm and at ease.

32.       Under these circumstances, no weight can even be given to what is stated in the affidavit that Shehadeh submitted to the Elections Committee that he and the members of Balad are committed to the principle of “as state of all its citizens” as reflected in the in Balad’s platform that was examined and approved long ago by this Court.  Balad itself clarified – in its own voice and not in the framework of quotes from newspaper articles that may be given to different interpretations – in the petition that it submitted to the Court (HCJ 4552/18) that the bill was consistent with its platform. In this sense, the claim that Balad now adheres to the platform that was examined and approved long ago – before the true nature of its vision of “a state of all its citizens”, which was recently publicly clarified and expressed as noted by Balad – cannot be accepted.

33.       That being the case, and in view of the background detailed above, I am of the view that there is no alternative but to say that by presenting the bill, and certainly in filing the petition (HCJ 4552/18) by members of Balad in which it was made clear that the bill was consistent with Balad’s platform, the Balad party crossed the line to which it had come “dangerously close” more than once in the past. In this context I would note that presenting the bill was an expression of real, substantial, clear parliamentary activity that, in my view, cannot be dismissed as a one-time or sporadic matter, as is the opinion of my colleague Justice Amit.

            The argument presented by Balad’s attorney that the matter of the bill was not raised before the Elections Committee but first and unexpectedly in the position of the Attorney General submitted to this Court, and that he is therefore unprepared to address it, cannot be accepted. Not only was this matter expressly raised in the framework of the disqualification request presented to the Elections Committee (paras. 17-24 of the Likud faction’s request to disqualify Ra’am-Balad), and not only was it raised in the hearing before the Elections Committee (p. 4 of the transcript of the hearing of the Elections Committee of March 6, 2019), but it was also addressed on the merits by Balad’s attorney, who raised the same claim made in that hearing that he raised before us that this is retribution merely for raising an “idea” (p. 35 of the transcript off the hearing before the Elections Committee of March 6, 2019). Moreover, the Ra’am-Balad list also expressly referred to the matter of the bill in the appeal that it submitted to this Court (paras. 23-25 of the appeal in EA 1876/19).

34.       In any case, beyond the fact that submitting the bill (together with what was stated in the petition) significantly and unambiguously grounds the said cause for disqualification, this bill does not exist in a vacuum. The bill is not the only evidence under consideration, although it would appear to be decisive evidence in and of itself. Additional evidence was presented that when added together points to a collection of evidence and a “critical mass” that demonstrates that we are concerned with a list that has raised the banner of open struggle against the foundations of the State of Israel.

35.       In this framework I would note that I do not believe that the fact that Balad’s activity and members were examined in the past renders addressing them now superfluous. Are we not required to examine the matter of Balad in accordance with the up-to-date material presented to us, which also casts light upon what was presented in the past? When the matter of Balad was examined in the past, the Court had before it the material that had accrued up to that date. Given that additional evidence has accrued in the interim, which might have led the Court to a different conclusion at that time, we cannot continue to rely upon conclusions drawn in the past from the material presented then while ignoring the updated material.

36.       Given the above, an examination of the entirety of the evidence in the matter of Balad and its members shows that this time it has gone too far. Even if in the past, the material presented in regard to it and its members came close to the bounds defined in the Basic Law but did not cross them, today the situation is different. Indeed, this Court found that MK Zoabi’s participation in the Marmara flotilla did not disqualify her from standing for election to the Knesset (the Zoabi case). However, I believe that weight should be accorded to her actions in examining the disqualification of the list of which she is a member (even if not in a “realistic” place), and in view of the additional evidence that has accrued in regard to that list since the Zoabi case. This is also true in regard to the Bishara matter, which was addressed in the past in the Ehrlich case and the Tibi case. Only later, as was also noted in the matter of Balad (in which the matter of Bishara was not addressed as he had left the country), it became clear that Bishara was suspected of serious security offenses pursuant to which he was forced to flee the country. Therefore, in examining the current evidentiary foundation in regard to the list in its entirety, weight should also be given to this matter (even though Bishara no longer stands at the head of the party). In view of the above, can one imagine that if the matter of Bishara were examined after new material came to light that pointed to serious suspicions of committing offenses, this Court would rely upon its findings in the Ehrlich case and the Tibi case without examining whether the new evidence added to the material that was examined and remained in “doubt”?

            The actions of those has since been compounded by the criminal-security related activity of MK Basel Ghattas, a member of the party who was convicted in 2017 of smuggling cellphones and other items into a prison in which security prisoners were held, as well as the conviction of another MK who was a member of the party, Said Naffaa, for the offense of contact with a foreign agent in 2014, after meeting with the deputy secretary general of the Popular Front (see the denial of his appeal in CrimA 6833/14 Naffaa v. State of Israel [34]), which was not considered in the past in the matter of the entire party.

37.       Added to all of that was the connection affirmed by Balad to its erstwhile leader Azmi Bishara in the course of the annual convention of the Ra’am-Balad party in Nazereth, when it deemed it appropriate to send him a “blessing”. And note that it was made clear to the Elections Committee that this matter was not denied (pp. 29-32 of the transcript of the Elections Committee hearing of March 6, 2019). By that, the present Balad list also declared that it is the successor of the person who led it in the past. It should be emphasized that we are not concerned only with a relationship with Bishara that justifies disqualifying the list (compare: the Balad case, para. 20), and I am not unaware that of the list’s argument that it cannot be held responsible for the actions of MK Naffaa, who has not been a member of the Balad party since 2010, or the actions of Zoabi, who is in an “unrealistic” place on the list. We are concerned with an aggregation of additional, compounded evidence over the course of years that indicates a significant, persuasive, and unambiguous tapestry in regard to meeting the causes of disqualification. An additional connection to Bishara was also presented in the article in the Ha’aretz newspaper of Aug. 18, 2014, according to which then members of the list – Jamal Zahalka, Hanin Zoabi, and Basel Ghattas – met with Bishara in Qatar, which was not denied by Shehadeh (pare. 8 of Shehadeh’s affidavit to the Elections Committee). To all of this is added the current conduct of the members of the list in the form of giving unambiguous, blunt support for terrorist actors who were convicted and incarcerated, whom the current head of the list, MK Shehadeh, refers to as “political prisoners” (article in the Makor Rishon newspaper of Jan. 13, 2019). This is compounded by unambiguous statements in a recorded interview (on Galei Yisrael radio) in the course of which Shehadeh stated in his own words that “every struggle against the occupation is legitimate” and that “we support every popular struggle”.

            Thus, the entirety of the clear, unambiguous evidence – together with the most significant piece of evidence concerning the submission of the bill – shows that the dominant characteristics at the center of the list’s parliamentary and extra-parliamentary action are directed at infringing protected values. The list vigorously acts to realize its objectives through actions and verbal statements.

38.       Under these circumstances, the list’s argument that part of the evidence concerns persons who are no longer candidates of the Ra’am-Balad list for the elections to the 21^st Knesset can be of no assistance. The candidates of the 21^st Knesset sought, of their own initiative, to join a list that has a “rich” past as detailed above. We are concerned with people who seek to join an existing list based upon the “reputation” that it has acquired, the ideology that is its banner, its purposes and actions that were expressed on various public platforms, and of course, its supporters. The candidates’ distancing themselves from the action of that list – at least in regard to the matter of the bill that was submitted during the term of the 20^th Knesset – cannot be accepted. Beyond the fact that evidence was presented that indicates a real connection to its erstwhile leader Bishara, we cannot countenance the argument that the current members of Balad do not stand behind Balad’s platform that Balad itself declared in the 20^th Knesset was consistent with what was stated in the bill that was submitted. The claim that we are concerned with “a new generation” cannot be accepted when it concerns the disqualification of a list regarding which clear, unambiguous evidence was presented regarding the meeting of a cause for disqualification.

39.       According to the position of the Attorney General as expressed before us (in sec. 44 of his written position as well as in the oral arguments – despite the fact that he said absolutely nothing on this matter in the written position presented to the Elections Committee), there is nothing in the bill that would lead to the disqualification of the entire list because we are concerned with a joint list of Ra’am-Balad and not of Balad alone. In my opinion, the Ra’am-Balad list cannot be approved for this reason alone. It is difficult to accept the argument that the existence of a cause for disqualification can be “healed” by joining one list to another in a joint list. In view of the purposes of sec. 7A of the Basic Law, the combining of lists cannot confer “immunity” or a defense to a party that has deviated from the path. This, while undermining the fundamental principles defined in the framework of the Basic Law, is not repaired by adding a party. The Sages taught us the principle: “Woe to the wicked person and woe to his neighbor,” and “Blessed is the righteous person and blessed are his neighbors,” which is derived from the arrangement of the Israelite encampment in the desert. Thus, the tribe of Reuben, which encamped beside the members of Kehat, was punished with them in the dispute with Korach and his followers, while the tribes of Judah, Issachar, and Zebulon, which encamped beside Moses, Aaron and his sons, became great Torah scholars (Numbers 3:29 and Rashi ad. loc.). If that is so for the arrangement of an encampment and the placement of neighbors, all the more so when we are concerned with a party joining with another. Joining together is premised upon a shared ideological, political, and conceptual platform. As the prophet Amos said: “Can two walk together, unless they are agreed?” (Amos 3:3). We cannot accept the argument that if there is a cause for the disqualification of the Balad party, the very joining of Ra’am suffices to remedy it. The joining of the Balad party with the Ra’am party does not purify it, but rather it contaminates the Ra’am party that tied its fate with it in a joint list. The “pure” does not purify the “impure”, but rather the “impure” corrupts the “pure”. It would be better were parties to act cautiously when choosing to join parties whose extremist course is on the boundary (and certainly when it crosses the boundary) defined in the Basic Law.

            To summarize, in my opinion, both in the matter of Cassif and in the matter of the Ra’am-Balad list, “all else has failed” even according to the strict criterion of my colleague Justice Sohlberg.

40.       In conclusion, my colleagues’ interpretation in regard to the disqualification of a single candidate and in regard to the disqualification of a list on the cause of support for armed struggle against the State of Israel and the cause of denying the existence of the State of Israel as a Jewish state render the words of the legislature merely theoretical. The Talmud (BT Sanhedrin 71a) addresses the elements of the offense of an individual – the stubborn and rebellious son, and of a group – the idolatrous city, which have committed certain offenses. However, the Tannaim interpreted the elements of the offenses so rigidly that that the Talmud concludes: “There never was and never will be a stubborn and rebellious son. And why was it written? So that you may expound upon it an receive reward”, and: “There never has been an idolatrous city and there never will be one. And why was it written? So that you may expound and receive reward” (a similar expression also appears in regard to Job, of whom it was said: “Job never existed and was never created, but was a parable” (BT Bava Batra 15a). However, alongside this view we find the view of Rabbi Yochanan, who was of the opinion that these were not merely theoretical matters, and who states in regard to the stubborn and rebellious son, “I saw him”, and in regard to the idolatrous city, “I saw it”. We are concerned with practical matters that were and will be in the future. By analogy, the above is applicable to the matters before us, as well.

            And so I say loudly and clearly: “I saw him,” “I saw it,” and we cannot turn our eyes away from seeing.

 

Justice G. Karra:

            I concur in the opinion of President E. Hayut and with the opinions of my colleagues U. Vogelman, I. Amit and E. Baron on the matter of the inapplicability of the probability test to the cause of disqualification for incitement to racism under sec, 7A(a)(2). I would add that the accumulated critical mass of statements and actions detailed at length in the President’s opinion thoroughly ground the conclusion that incitement to racism is a dominant, firmly rooted, and central purpose of Ben Ari’s doctrine. The escalation of racist statements over the last years leaves no possibility for accepting his artificial explanations, not even to the extent of raising doubt as to the intention and purpose of the statements.

            From among Ben Ari’s racist statements and actions, I would like to spotlight a dark, severe act mentioned in para. 44 of the President’s opinion, that is lost in the large catalogue of his inciteful publications. I refer to the act of tearing up the New Testament and throwing it into the waste basket when Ben Ari was serving as a member of the Knesset in the years 2009 to 2013. It is an act that has nothing to do with incitement against Arabs, but it serves to show us that Ben Ari’s racist worldview, which he has espoused over the course of years, is much broader and deeper than incitement against Arabs, whom he sees as enemies. It would appear that this racism is deeply rooted in hatred of the “other” and the different, per se.

            Approving the candidacy of a person who incites to racism and hatred of the other would taint Israeli democracy, and therefore, a normative statement is required saying that such an inciter must be relegated from the Israeli Knesset.

 

Justice N. Hendel:

1. I concur in the clear, comprehensive opinion of my colleague President E. Hayut. I would briefly sharpen what I see as the main points in regard to each of the actors – candidates and lists – examined in the present proceedings, regarding which there are disagreements among the members of this panel. I will also present my position on a number of general issues regarding which questions or doubts were raised – the probability test, the consequences of two parties running jointly in regard to the existence of a cause for the disqualification of one of them, and the interpretation of the cause “denial of the existence of the State of Israel as a Jewish and Democratic state”.

The relationship between law and elections can be likened to two pillars. One pillar says: “This is democracy’s holiday. An equal vote for every citizen. The people must have its say. The Court does not – and must not – take a stand as to the desired results”. The other pillar says: “Elections without law may distort democracy. Not a day of celebration but of mourning. Bribery, bullying, or a regime takeover of the elections. The answer is the open eyes of the law as written, expressed, and intended. There must be rules even for the smallest details: the timeframe must be strictly observed; the ballot box must be accessible; who can vote and who can be elected. Maintaining the laws is also vital to democracy”. While the first pillar maintains a distance between the law and the elections, the second requires involvement and supervision. Is there a contradiction between the two? I believe that the answer is in the negative, and it is unsurprising. The two pillars sing the praises of democracy together. In other words: there is no contradiction between democracy and the Court’s supervision over the rules. On the contrary, the Court acts to advance democratic principles by virtue of the authority conferred upon it by the legislature.

            Democratic elections are not self-evident. History gives context. In the past, and for a very long period, change of regime was achieved by military coup or the death of the autocratic ruler. Democracy changed the rules. Not power but election. Decisions are made not by the powerful but rather every citizen has equal power. That is the aspiration, and it must strictly be put into practice. It is not a simple task. After all, the voice of the single voter is not, of itself, strong in comparison to the regime. Democracy strives to preserve its character and not lose it in the course of elections. This gives rise to the role of the Court and the proximity of the pillars.

2. Israeli law establishes when a candidate or a list should be prevented from participating in the elections due to their objectives, actions, and expressions. Section 7 of Basic Law: The Knesset presents the substantive test and the procedures for preventing a list or candidate from participating in elections for the Knesset. This section, and section 63A of the Knesset Elections Law [Consolidated Version], 5729-1969, establish the procedures for this. The substance is defined by three causes for disqualification:

 

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

The procedures are that when the Central Elections Committee for the Knesset Elections prevents the participation of a candidate, the approval of a nine-judge panel of the Supreme Court is required. It is not an appeal but an approval proceeding. The law chose to introduce the Court into the proceedings. It is not post facto judicial review but an ex ante decision. For the prevention of the participation of a list or the approval of a candidate of a list – there is an appeals process.

We addressed the tension between the two pillars presented. Each holds great power in our legal system, and thus the sensitivity required in the course of moving between them in practice and in real time. The path chosen by this Court is one of caution and self-restraint before it prevents the participation of a candidate or a list. Doubt acts in favor of the candidate. This is the consistent approach of the case law in election matters, as explained by my colleague the President. It is interesting to turn to another area of law in which doubts wields great power. In criminal law, a person can be convicted if the charge is proved beyond reasonable doubt. The reason for this is the recognition of the regime’s power to taint and punish the individual. As opposed to this, in Knesset elections, the power of doubt lay in a different consideration – the role of the voter in choosing the candidate and the list it prefers. This Court does not eagerly intervene in election matters. On the other hand, the law requires it to do so in the appropriate circumstances. Just as the will of the electorate must be honored, so too the will of the legislature in such matters. The compromise – or more precisely, the proper balance – is to employ the law only to prevent candidacy in exceptional cases in which, for example, the doubt is not of substance and is not rooted in reality. This rule is intended to permit the voter to express its position on the matter within the four cubits of the ballot box. As opposed to criminal law, in which the court establishes facts in regard to the defendant’s acts and intentions – in the present matter, we look not only backward but forward as well: is the candidate or the list, at the time of the elections, expected to act contrary to the causes enumerated in the law if elected – but in the present and not necessarily in the past. We are thus concerned with a certain evaluation in regard to the future.

However, in the exceptional case in which the candidacy of a candidate or a list meets the following criteria: the cause is a dominant characteristic of the list or the candidate; there is clear, unambiguous evidence of the cause; there is active conduct, including expression in the case of a candidate, for realizing the wrongful objectives; there is a critical mass of highly credible evidence (see the detailed description in para. 16 of the opinion of my colleague the President). Only if these conditions are met is there the necessary certainty to justify the result of disqualification. In the background stands the right to vote and to be elected. That underlies the democratic foundation of elections. And note that the right to be elected has direct consequences for the right to vote.

Another aspect of the matter is remorse or a candidate’s recanting an objective or activity related to one of the constitutional causes. The reason is self-evident. The decision is not personal or punitive but rather institutional and preventative. In other words, its purpose is to prevent an inappropriate actor from becoming a member of the next Knesset. Of course, we are not concerned merely with a declarative test. There must be an examination of whether there are grounds to conclude that the declaration is sincere. Or more precisely – that the declaration is not sincere. Of course, there is a possibility that a candidate may not live up to his declarations. This is not a danger that would justify expanding the list of disqualified actors. If a candidate or list does not live up to its expectations, there are “sanctions” and other means for contending with the matter, whether in the course of the Knesset’s term or in the elections for the next Knesset.

3.         Two points to conclude the general sections. The first concerns the dissenting opinions of my colleagues. I have read the opinions of my colleagues Justice N. Sohlberg and Justice D. Mintz. My colleague Justice Sohlberg is of the opinion that no one should be prevented from participating in the elections for the 21^st Knesst, while my colleague Justice Mintz is of the opinion that along with Michael Ben Ari, Ofer Cassif and the Ra’am-Balad list should be prevented from participating in the elections for the Knesset. In my opinion, and pursuant to the above, Justice Sohlberg’s approach might lead to the non-disqualification even of candidates who clearly meet the causes for disqualification. This, while making even the strict case-law tests weighed prior to preventing the participation of a candidate or list in the elections more strict. As for the approach of my colleague Justice Mintz, in my view, his approach might lead to over-disqualification of candidates and lists from both sides. It would appear to me that the path taken by the case law in the past and in the present embraces both of the pillars presented above. Disqualification is imposed cautiously and only exceptionally.

            The second point is that of the symmetry test. My colleague Justice Sohlberg presented a statement by MK Michael Eitan in which he asks: “Where is the symmetry?” I agree with this question and would only like to sharpen the point. Symmetry does not have to be expressed in the final result, but rather in the application of equal criteria. Aspiring to symmetry in order to balance the results is a quasi-political consideration that the Court cannot adopt. I will allow myself to say that reading the opinions of my colleagues – of the majority and the minority – shows that the conclusions were based upon a legal approach and the examination of the evidence, and not upon any desire to maintain equally balanced results.

            Armed with these tools, I will conduct an individual examination of the relevant actors – Michael Ben Ari, Ofer Cassif, and the Ra’am-Balad list.

4.         Michael Ben Ari: The relevant cause in the matter of Ben Ari is “incitement to racism”. We are concerned with some forty different statements, most of which were uploaded to the Facebook page of “Otzma Yehudit with Michael Ben Ari”, such that the matters cannot be denied. Indeed, Ben Ari does not deny them. Most of the material dates from the year preceding the elections. My colleague the President presented the relevant statements (paras. 38-41 of fer opinion). It makes for difficult reading. What was presented suffices, and there is no need to present it again, Comparing the statements with the language of the law raises the question of what is the test for “incitement to racism”?

            I will begin with the term “incitement”. Not racism but incitement to racism. The hand or mouth of one and the hearing ear of the other. In other words, we are not concerned with personal views that the candidate keeps to himself. The opinions must be expressed in order to incite to racism. In addition, my colleague Justice M. Mazuz referred to the probability test. In his opinion, that test should not be applied to the causes under sec. 7A of Basic Law: The Knesset. I agree with his conclusion and reasoning. The language does not support the application of such a test, and such is also the purposive interpretation. Such a test would be too speculative and very difficult to apply at the time of the elections. Additionally, the basis of the causes for disqualification is not necessarily the prevention of a real, concrete threat to one of the protected values, but rather clearly expresses not granting legitimacy to lists or candidates who adopt the approaches set out in the causes. In summary, I accept his conclusion that “we are concerned with causes of ‘conduct’ not ‘results’” (para. 2 of his opinion).

            Now to the question of what constitutes “racism”. My colleague the President addressed, inter alia, the aspects of hatred, hostility, persecution, degradation, and humiliation (paras. 25-32 of her opinion). In regard to Ben Ari’s candidacy, I will say: there is no need to establish the minimal threshold for disqualifying a candidate on the basis on incitement to racism. It suffices to find that in this case, the candidate exceeded the threshold by a wide margin. His statements seek to influence conduct. And note that the lack of a need to prove the elements of the probability test does not contradict the fact that the aspiration to influence conduct in practice reinforces the ground for disqualification. In his statements, Ben Ari espouses the denial of civil rights to the Arab public. So in regard to participating in public tenders and so in regard to their ability to live in cities. He supports their collective deportation in certain circumstances, and employs violent imagery in regard to that community, including shooting. The evidence is very substantial, unambiguous, and dominant in his doctrine.

            In his affidavit to the Elections Committee, Ben Ari argues that he is not a racist, in that he accepts that every person – including the Arabs – are created in God’s image. Only then does Ben Ari proceed to the loyalty test. He is not against Arabs because of how they were born, but because they failed the loyalty test. Moreover, the overwhelming majority of Arabs are not loyal. That “overwhelming majority” was defined in various statements: from 99% to a few who can be counted on the fingers, and Ben Ari never met a loyal Arab. Thus, they have all become enemies. This is the fallacy at the base of incitement to racism. As President Shamgar held, racism is not just a matter that derives from the biology of the other (EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset [5], 191-192). Racist views can also be examined in accordance with theories, conclusions, and factors that arose after a person’s birth and not upon the DNA that characterizes a group of the population. Not just genetics but epigenetics. Ben Ari did not explain the meaning of the “loyalty test” – what are the criteria of this test, when does one fail it, and how is it that with the exceptions of a very small number of individuals, all Arabs belong to the disloyal group. We are concerned with very severe matters that are not based upon facts but upon a circular conclusion. The results are harsh. An Arab is presumed to be an enemy who must be dealt with. This, by means of denial of rights, deportation, or the possibility of violent treatment. For example, it was stated that anyone who dares to speak against a Jew doesn’t live. He doesn’t live, but rather “a firing squad kills him, he is done away with”; that the “murderers” should not be employed, also in reference to the Arab residents of Israeli cities; that affirmative action should be rescinded in view of the “treasonous” and “murderous” character of Arabs; that Arabs are a “murderous people, a murderous nation”; and that the village from which a terrorist went to an “airport” should be uprooted and its residents “flown” to other countries.

5.         I will clarify the matter from another perspective. One may ask why these particular causes established in the law were chosen. The cause of support for armed struggle against the state is clear and requires no explanation. The cause of denial of the State of Israel as a Jewish and democratic State was intended to defend the existing foundations of the state. As for incitement to racism, we are concerned with a desire to deny the legitimacy of a group. In a varied, multi-group society like that of the State of Israel, this harms the nature of the society. This is striking when we are concerned with some twenty percent of the population. It saddens me to say that reading Ben Ari’s positions – and the reader can read paras. 38-41 of the opinion of my colleague the President – leads not only to racism in the form of humiliation and hatred, but also to severe acts that might undermine social order or create discriminatory law in regard to the foundations of civil rights, including the right to remain a citizen of the state. This is not due to the actions of the group, not due to criminal offenses perpetrated or plans to do harm, but because they do not meet the conception of a proper minority as Ben Ari understands it. By that, I am not finding that he has committed a crime, but there are special requirements in regard to lists and candidates for the Knesset. Particularly in a system in which a representative often represents a specific group, we must make certain that even if he does not fight for the rights of the group, he cannot fundamentally deny the legitimacy of the other group and its right to elementary rights. And all the more so, harm and violence lacks any legitimacy.

6.         The conclusion from all of the above is that this is an unambiguously extreme case. And note well, Ben Ari did not express remorse, but rather embraced his position while explaining that he is not a racist and does not reject Arabs on the basis of their birth. To clarify the picture, let us compare him to Advocate Itamar Ben Gvir and to former candidate Baruch Marzel. It can be assumed that the three share a similar ideology, in that they ran together on the same list. However, this Court refrained from disqualifying Marzel and Ben Gvir. The decision not to disqualify Ben Gvir in these proceedings was unanimous. What difference is there between him and Ben Ari, who was disqualified by an eight-judge majority? It would appear that the tests of the strength of the evidence, its extent, quality, and unambiguity led to that result. But we would note one additional criterion: expressing remorse. Both Marzel and Ben Gvir informed the Court that they intended to act in accordance with the requirements of the law, including the causes for disqualification that it establishes. Even if they behaved differently in the past, they declared that that is how they would conduct themselves. They understood and internalized the qualifying conditions for Knesset candidacy. Ben Ari was not a partner to that choice. He continues to support the views that he expressed. We are not concerned with some technical defect or lack of comprehension. Just as we must respect the manner in which Ben Gvir and Marzel presented their arguments at the moment of truth, so we must respect Ben Ari’s position that justifies his disqualification. My colleagues spoke of how, due to its history, the Jewish people in particular must be sensitive to statements like those expressed by Ben Ari. In my view, we should add that it is not just the history of the Jewish people, but also its faith.  But truth be told, there is no need for that. In these circumstances, there is not even a need to demonstrate the matter by a thought experiment in which Ben Ari would express his views in another country against Jews.

7.         Ofer Cassif: The disqualification request points to two causes that can bar his participation in the Knesset elections. The first is “negation of the existence of the State of Israel as a Jewish and democratic state” and the second is “support for armed struggle by a hostile state or a terrorist organization against the State of Israel”. The evidence presented against him relies upon four publications, the central of which is an interview he gave to the Ha’aretz newspaper in February 2019. It would appear that my colleague Justice Mintz addressed both causes together, but there is a difference in the scope of the evidence and in Cassif’s explanations in regard to each cause, which requires that they be addressed separately. My colleague presented Cassif’s case as so clear as to leave no doubt, and according to his approach, there is no possibility of arriving at a different result.

            Below, I will sketch the general outline of why I hold a different view. The question in regard to Cassif, as for every candidate, is whether there is justification for preventing him from being elected as a member of Knesset in view of the causes established in the Basic Law. As I explained above, the matters are examined in a particular period of time, with a view to the future, and in regard to the candidates functioning in the legislature if he be elected. Past statements and actions may serve as the evidentiary foundation in regard to a position in the present and in the future. The purpose is not to punish improper actions and statements, but to ascertain whether the candidate constitutes an exception that justifies barring his participation in the elections. Cassif said things in the past, although not with great frequency and consistency, that would require him to explain why he should not be prevented from participating in the elections. Cassif’s answer to this is clear, consistent, and divided into three parts: one, in regard to the possibility that he supports armed struggle by a terrorist organization against the State of Israel, is that he does not support violence, not in the past and certainly not at present. I believe that an examination of the matter, as I will explain, supports that conclusion. Even if Cassif spoke harshly, there is a lack of a foundation proving that he supports violence – certainly the foundation needed to prove that he supports armed struggle by a terrorist organization against the State of Israel.

            The second part of his answer concerns the possibility of negating the State of Israel as a Jewish and democratic state. In this regard, he does not deny that he has made statements in the past against various symbols of the state and against the Law of Return, but he declared that he accepts the platform of his list – Hadash-Ta’al – and does not, in that or any other frameworks, act or call for the annulment of the symbols or the Law of Return. He accepts the parliamentary rules. In other words, not only is this not a case of a dominant purpose, but rather there is no such purpose at all. As I explained above, the Court has consistently granted weight to a change of position and a declaration in regard to an absence of intent to act or express oneself contrary to the causes enumerated in Basic Law: The Knesset. As noted, this consideration, applied mutatis mutandis to other causes, is what allowed the candidacy of Baruch Marzel in the past, as well as that of Itamar Ben Gvir at present. It his unwillingness to follow that path that stands in Ben Ari’s way.

            The third part concerns various statements by Cassif that compare the State of Israel and the members of its government to Nazi Germany. My colleague Justice Mintz gave weight to those statements. We are concerned with shameful statements that do no honor to one who makes them, and certainly not to one who seeks election a member of Knesset. It were better had they never been said, and one hopes that if Cassif is elected to the next Knesset, he will refrain from acting in this manner. However, as my colleague the President noted in her opinion – and this is the third part of Cassif’s response – those statements do not fall within the scope of any of the causes enumerated in sec. 7A, and to my understanding, the Court cannot take them into account in examining the disqualification of a candidate. In this regard, I would note that the opinion of my colleague Justice Mintz also referred to Cassif’s statement in his affidavit (para. 13) that he would “not necessarily use those expressions if elected to the Knesset” (emphasis added). According to his approach, the absence of an undertaking by Cassif in regard to his future conduct does not work in his favor. However, and see paras. 12 and 13 of the affidavit, it appears that this statement referred to the shameful statements mentioned above, and not to statements related to the causes enumerated in the law, such that I do not think that this can be held against him in this proceeding.

            In view of the severity of the cause of supporting armed struggle by a terrorist organization against the State of Israel, it would be proper to present Cassif’s own words as stated in his affidavit to the Elections Committee. He affied that “I have never called for violence, and I am opposed to violence as such against any person”. As my colleague the President noted, Cassif explained to the Elections Committee that “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence […]” and stated further on that “I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all”. In regard to the definition of the term “terror” as opposed to “guerilla warfare” in all that concerns harm to soldiers, Cassif’s attorney emphasized in the hearing before us that the statements were made in the course of an academic debate on the subject and that one should not infer that he expressed support for harming soldiers from the presentation of his position in the matter:

He said that he has a dispute with the term “terror” even in the UN there is a dispute about this word. He wrote this and teaches his students. The dispute about the Prevention of Terror Ordinance then was a debate. Therefore, what he says about this matter of who is or isn’t a terrorist from an intellectual and academic perspective is debated […] these terms that he employs are not foreign to the Supreme Court and not to the international humanitarian court. Not one word here is a call [to terror] (p. 9 of the transcript).

            Even if one does not agree with the definitions adopted by Cassif, and even if they cause indignation, in the context presented to us they cannot be taken to imply, of themselves and certainly not given the entire collection of statements and explanations, support for armed struggle by a terrorist organization against the State of Israel. It is sad that his words show, in my opinion, a certain sense of contempt for the lives of IDF soldiers and complacency in regard to many citizens who have lost what was most dear to them in the name of defending the homeland. In such matters, a member of Knesset and a candidate for election as a member of Knesset is expected to act with sensitivity. But there is a gap between such a failing and the existence of a cause to prevent participation in the elections.

            In summation, I would say as follows. In my opinion, there is no basis for attributing to Cassif statements that support armed struggle by a terrorist organization against the State of Israel or the negation of the existence of the State of Israel as a Jewish and democratic state. As noted above, there are four conditions that must be met in order to bar a candidate from participating in the Knesset elections: the cause for disqualification constitutes a dominant feature; the existence of clear, unambiguous evidence of the existence of the cause; activity, including expression, for the realization of the wrongful purposes; a critical mass of highly credible evidence. In my opinion, there is no basis for attributing to Cassif expressions of support for armed struggle by a terrorist organization against the State of Israel. He made it clear that he always was and always will be against violence. As for his positions on the symbols of the state and the Law of Return, he declared that he abides his party’s platform. In regard to both causes, the evidentiary foundation is sparse, certainly not unambiguous, and lacks the requirement of dominance or activity for the realization of the purpose. In other words, both independently and cumulatively, the evidentiary foundation against him does not meet the four tests.

8.         Ra’am-Balad: The proceeding in the matter of the Ra’am-Balad list focused upon the Balad party. It is argued that the central piece of evidence for disqualifying the list in these elections is the Basic Law: A State of all its Citizens Bill that Balad sought to propose to the 20^th Knesset. The bill was submitted to the Knesset presidium, but that body did not approve its presentation before the Knesset.

            The bill was of a general character. For example: “The state is a state of all its citizens, in which the regime is democratic; the state’s regime is based upon the values of the dignity of the person, his liberty and his being an equal among equals”. There is also reference to the language, the symbols and the anthem, which will be in the same spirit. It is argued that the positive implies the negative, that is, that the practical significance of this bill is the revocation of the Law of Return and changing the symbols of the state and its anthem such that they would not express its being Jewish but only democratic. Taking this step carries some weight. It is more forceful than a newspaper interview, for example. It is parliamentary activity that can bear fruit. The list’s attorney argued that the bill was a sort of “gimmick” in response to Basic Law: Israel – The Nation State of the Jewish People. This argument, in itself, is insufficient. The bill refers to the negation of the State of Israel as a Jewish (and democratic) state, and even if some party or other is frustrated as a result of the activity of the government and the Knesset, it is not exempt from the requirements of the Basic Law. However, the submission of the bill must be examined not just on the legal level but on the factual level. To be more precise, the factual level constitutes a central part of the legal examination. Thus, the party’s conduct in regard to the causes under the law must be examined in accordance with the strict rules. From that perspective, the bill, by itself, does not cross the necessary threshold. First, as already stated, one of the conditions is that of dominance in the purposes and active conduct. It was not argued that the bill also appears in the party’s platform. Second, the bill is signed by the Knesset members who served at the time, some of whom are no longer candidates in the current list, and others are place only symbolically. Thus, for example, MK Hanin Zoabi was placed in the 118^th spot on the list. In regard to the candidates who appeared before us and who are placed at the top of the list, it turns out that they do not support that position. Their attorney even referred to the bill as a kind of mistake. And again, the matter must be examined according to the relevant tests. It would not appear that the desire to annul the anthem, the law and the symbols is dominant, or that they are actively working in such a manner, in particular in regard to the figures who currently represent the list. On the contrary, those positions are not part of the party’s planned parliamentary activity. Not just remorse, but a lack of devotion to the purpose, and conduct at a very specific time. Were the list continuing in that conduct – since the Law of Return remains in force – the situation might be different. But that is not the situation before us.

            From reading the opinion of my colleague Justice Mintz, it appears that he does not agree with the reasoning of the majority. He expanded upon the subject of the party’s conduct that was addressed in the case law in the past, in regard to previous Knesset elections. Of course, one can be of this or that opinion in regard to decisions rendered in regard to previous Knesset elections, but it does not appear that at present, significant weight should be attributed to conduct that this Court already decided was insufficient to prevent the party’s participation in the elections. Thus, the focus is upon the new material, and that is what I addressed.

            My colleague Justice Mazuz is of the opinion that the term “Jewish state” in the context of Basic Law: The Knesset should be understood as referring to the identity of the state in the national sense. In other words, it does not necessarily refer to a change of the internal content, like the state’s symbols. In my view, it would be incorrect to construe the term “Jewish state” as a test of the right of the Jewish people solely to national existence for three reasons. First, the term “Jewish” is not merely a geographical matter, but an historical one as well. The state’s symbols carry weight in the basic definition of the state. So it is in regard to other states as well. Second, the case law has also adopted this view in the past (see, e.g., EDA 50/03 Central Elections Committee v. Tibi [35], 21-22, according to which “the ‘nuclear’ characteristics that shape the minimal definition of the state being a Jewish state…the right of every Jew to immigrate to the State of Israel in which Jews will be the majority; Hebrew is the primary official language of the state; Jewish heritage is a central component of its religious and cultural heritage”). Third, it would appear that practical experience shows that the objections in debates upon negation of the Jewish state focused upon the return to Zion, and not upon questions of general, historical, and religious symbols. Thus, the practical consequences of this distinction are unclear. The primary practical problem concerns proposals to annul the Law of Return, and not merely the changing of the symbols. In any case, it would seem that a construction that includes “internal” characteristics of the term “Jewish” would be more precise, and thus I would take exception to my colleague Justice Mazuz’s distinction. Of course, when I say “internal”, I refer to the most basic matters, but there is no need for elaboration or for a precise delineation.

            A final point. According to the position of the Attorney General, there is significance to the fact that the Ra’am and Balad parties are running together on one list. As opposed to this, I am of the opinion that as a rule, a party that has been tainted by a cause that disqualifies it from participating in the elections cannot cross the hurdle by joining with another party. Such an approach would afford too easy an exemption for a party that should be disqualified simply because it joins with another. In my view, the Attorney General’s approach, according to which weight should be given to the combining of parties – even if this does not grant an “exemption” – is problematic. The reason for this is that it is not clear how to calculate such a factor. There is also the fear that parties might join together so that one will “clean” the other of the cause that has tainted it. It is one thing to recognize remorse, and another to grant a seal of approval due to joining another party. I am of the opinion that if there is a cause for disqualification, then the law requires that the list be barred from running, subject, of course, to restricting disqualification to exceptional cases. Therefore, I did not grant weight to the arguments concerning the relationship between Balad and Ra’am in examining the matters.

9.         The right to vote and the right to be elected are twins, but not identical. In practice, “to vote and be elected” is presented as a single right, when each actually has an independent dimension. This is so, despite the strong connection between them, regarding which it suffices to mention that the right to be elected influences the right to vote. I will demonstrate what the two rights share and what distinguishes them in regard to the issue addressed in these proceedings – the application of sec. 7A of Basic Law: The Knesset.  

            The right to vote focuses upon the identity of the decider and the right to be elected on the question of who is qualified to represent the people, or in our case – who is not qualified to represent them. It would appear that the right to vote places its emphasis upon the individual. The vote of every voter is worth no less that the vote of any other voter, regardless of his status, position, conduct, or statements. Therefore, the criteria for identifying who is entitled to vote are formal. As opposed to this, the question as to who can be elected is not merely formal, but value based. This is how we are to understand the causes that prevent participation in the elections that concern not only support for armed struggle, but also negation of the existence of the State of Israel as a Jewish and democratic state, and incitement to racism. Its purpose is to define the society and its boundaries. The purpose of the right to vote is to protect the individual, whereas the purpose of the right to be elected is to protect the unity of the nation. Both rights are precious.

***

It was therefore decided, on March 17, 2019, by a majority, in accordance with the opinion of President E. Hayut, not to approve the decision of the Central Elections Committee in the matter of the disqualification of the candidacy of Cassif; to grant the appeal in the matter of the Ra’am-Balad list and rule that it is not barred from participating in the elections for the 21^st Knesset; to grant the appeal in the matter of Ben Ari and rule that he is barred from participating in these elections. In addition, the Court unanimously decided to deny the appeal in all that regards the Election Committee’s decision not to disqualify the Hadash-Ta’al list, and to deny the appeal in the matter of the non-disqualification of Ben Gvir.

Given this day, 15 Tammuz 5779 (July 18, 2019).

 

 

HCJ 4466/16

HCJ 8503/16

      HCJ 285/17

HCJ 6524/17

 

 

Petitioners in HCJ 4466/16:	Muhammad Alian and 6 others
Petitioners in HCJ 8503/16:	Yousef Abd A-Rahim Abu Saleh and 3 others
Petitioners in HCJ 285/17:	Sabih Abu Sabih
Petitioners in HCJ 6254/17:	Mohammad Ahmad Qunbar
	v.
Respondents:	1. Commander of IDF Forces in the West Bank
	2. Israel Police
	3. Office of the State Attorney
	4. State of Israel

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice Y. Danziger, Justice N. Hendel, Justice G. Karra

 

 

Israeli Supreme Court cases cited:

[1]        HCJ 7893/09 Almagor - Terror Victims Association (R.A.) v. Government of Israel, (Oct. 1, 2008)

[2]        HCJ 6063/08 Shahar v. Government of Israel, (July 8, 2008)

[3]        HCJ 5856/08 Farhangian v. Government of Israel, (July 6, 2008)

[4]        HCJ 914/04 Victims of Arab Terror International v. Prime Minister, (Jan. 29, 2004)

[5]        HCJ 9290/99 MMT Terror Victims HQ (R.A.) v. Government of Israel, IsrSC 54(1) 8 (2000)

[6]        HCJ 9594/09 Legal Forum for the Land of Israel v. Ministerial Committee on National Security Affairs, (April 21, 2010)

[7]        HCJ 548/04 Amana – The Settlement Movement of Gush Emunim v. Commander of the IDF Forces in the Judea and Samaria Region, IsrSC 58(3) 373 (2004)

[8]        HCJ 2717/96 Wafa v. Minister of Defense, IsrSC 50(2) 848 (1996)

[9]        HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander, IsrSC 43 (2) 529 (1989) [https://versa.cardozo.yu.edu/opinions/association-civil-rights-v-central-district-commander]

[10]      HCJ 1539/05 MASHLAT – Law Institute for the Study of Terror and Assistance to Terror Victims v. Prime Minister, (Feb. 17, 2005)

[11]      LCA 2558/16 A. v. Pensions Officer – Ministry of Defense, (Nov. 5, 2017)

[12]      CA 7368/06 Luxury Apartments Ltd. v. Mayor of Yavneh, (June 27, 2011)

[13]      HCJ 1640/95 Ilanot Hakirya (Israel) Ltd. v. Mayor of Holon, IsrSC 49(5) 582 (1996)

[14]      HCJ 6824/07 Manaa v. Israel Tax Authority, IsrSC 64(2) 479 (2010)

[15]      HCJFH 9411/07 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion, (Oct. 19, 2009)

[16]      HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security, IsrSC 58(2) 746 (2004)

[17]      HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel, IsrSC 53(4) 817 (1999) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-israel]

[18]      HCJ 5128/94 Federman v. Minister of Police, IsrSC 48(5) 647 (1995)

[19]      HCJ 355/79 Katlan v. Israel Prison Service, IsrSC 34(3) 294 (1980) [https://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[20]      CrimA 40/58 Attorney General v. Ziad, IsrSC 12 1358 (1958)

[21]      LCA 993/06 State of Israel v. Dirani, (July 18, 2011)

[22]      HCJ 52/06 Al-Aqsa Company for the Development of Islamic Waqf Property in the Land of Israel Ltd. v. Simon Wiesenthal Center Museum Corp., (Oct. 29, 2008)

[23]      HCJ 3114/02 MK Barake v. Minister of Defense, IsrSC 56(3) 11 (2002) [https://versa.cardozo.yu.edu/opinions/barake-v-minister-defense]

[24]      HCJ 7583/98 Bachrach v. Minister of the Interior, IsrSC 54(5) 832 (2000)

[25]      HCJ 6195/98 Goldstein v. GOC Central Command, IsrSC 53(5) 317 (1999)

[26]      HCJ 3933/92 Barakat v. GOC Central Command, IsrSC 46(5) 1 (1992)

[27]      HCJ 11075/04 Girby v. Minister of Education, Culture and Sport – Chair of the Higher Education Council, (Dec. 5, 2007)

[28]      HCJ 6536/17 Movement for Quality Government in Israel v. Israel Police, (Oct. 8, 2017)

[29]      HCJ 962/07 Liran v. Attorney General, (April 1, 2007)

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

[31]      HCJ 1075/98 State of Israel v. Oppenheim, IsrSC 54(1) 303 (2000)

[32]      CrimA 2013/92 State of Israel v. Jose, IsrSC 48(2) 818 (1994)

[33]      CA 421/61 State of Israel v. Haz, IsrSC 15 2193 (1961)

[34]      HCJ 7803/06 Abu Arfa v. Minister of Interior, para. 46 (Sept. 13, 2017)

[35]      LCA 3899/04 State of Israel v. Even Zohar, IsrSC 61(1) 301 (2006)

[36]      CA 524/88 "Pri Haemek" – Cooperative Agricultural Society Ltd. v. Sdeh Ya'akov – Workers Cooperative Village of Hapoel Hamizrachi for Agricultural Cooperative Settlement Ltd., IsrSC 45(4) 529 (1991)

[37]      HCJ 6807/94 Abbas v. State of Israel, (Feb. 2, 1995)

[38]      HCJ 4118/07 Hanbali v. State of Israel, (Aug. 30, 2015)

[39]      HCJ 9025/01 Awadallah v. Commander of IDF Forces in Judea and Samaria, (May 11, 2014)

[40]      HCJ 8086/05 Masri v. Commander of IDF Forces in Judea and Samaria, (May 11, 2014)

[41]      HCJ 8027/05 Abu Selim v. Commander of IDF Forces in the West Bank, (July 15, 2012)

[42]      HCJ 5887/17 Jabareen v. Israel Police, (July 25, 2017)

[43]      HCJ 9108/16 Shaludi v. Commander of IDF Forces in the West Bank, (Jan. 29, 2017)

[44]      HCJ 9495/16 Hagug v. Commander of IDF Forces in the Judea and Samaria Area, (Dec. 7, 2016)

[45]      HCJ 2204/16 Alian v. Israel Police, (May 5, 2016)

[46]      HCJ 2882/16 Awisat v. Israel Police, (May 5, 2016)

[47]      HCJ 7947/15 A. v. Israel Defense Forces, (Dec. 16, 2015)

[48]      CrimFH 7048/97 Does v. Minister of Defense, IsrSC 54(1) 721 (2000) [https://versa.cardozo.yu.edu/opinions/does-v-ministry-defense]

[49]      HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, (2006) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-government]

[50]      HCJ 7957/04 Mara'abe v. Prime Minister of Israel, IsrSC 60(2) 477 (2005) [https://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-israel]

[51]      HCJ 2056/04 Beit Sourik Village Council et al. v. Government of Israel, IsrSC 58(5) 807 (2004) [https://versa.cardozo.yu.edu/opinions/beit-sourik-village-council-v-government-israel]

[52]      HCJ 698/80 Qawasmeh v. Minister of Defense, IsrSC 35(1) 617 (1980)

[53]      HCJ 4764/04 Physicians for Human Rights v. Commander of the IDF Forces in Gaza, IsrSC 58(5) 385 (2004) [https://versa.cardozo.yu.edu/opinions/physicians-human-rights-v-idf-commander-gaza]

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

[55]      Abu Hdeir v. Minister of Defense, (July 4, 2017)

[56]      HCJ 5839/15 Sidar v. Commander of IDF Forces in the West Bank, (2015)

[57]      CFH 5698/11 State of Israel v. Dirani, (Jan. 1, 2015)

[58]      HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel, (2006) [https://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel]

[59]      LCrimA 10141/09 Ben Haim v. State of Israel, (March 6, 2012)

[60]      HCJ 337/81 Mitrani v. Minister of Transport, IsrSC 37(3) 337 (1983)

[61]      HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion, (Oct. 19, 2009)

[62]      CA 1600/08 Maximedia Outdoor Advertising v. Tel Aviv – Jaffa Municipality, (Aug. 18, 2011)

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

[64]      CrimA 6434/15 State of Israel v. Shavir, (July 4, 2017)

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

[66]      CA 8622/07 Rotman v. Ma'atz - National Roads Company of Israel Ltd., (May 14, 2012)

[67]      HCJ 680/88 Schnitzer v. Chief Military Censor, IsrSC 42(4) 617 (1989) [https://versa.cardozo.yu.edu/opinions/schnitzer-v-chief-military-censor]

[68]      HCJ 3037/14 Abu Safa v. Ministry of Interior, (June 7, 2015)

[69]      HCJ 2959/17 Alshuamra v. State of Israel, (Nov. 20, 2017)

[70]      CA 2281/06 Even Zohar v. State of Israel, (April 28, 2010)

[71]      HCJ 5290/14 Qawashmeh v. Military Commander, (Aug. 11, 2014)

[72]      HCJ 4597/14 Awawdeh v. Military Commander, (July 1, 2014)

[73]      HCJ 5376/16 Abu Hdeir v. Minister of Defence, (July 4, 2017)

[74]      HCJ 3132/15 Yesh Atid Party v. Prime Minister of Israel, (April 13, 2016) [https://versa.cardozo.yu.edu/opinions/yesh-atid-party-v-prime-minister]

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

[76]      HCJ 52/06 Al-Aqsa Association for the Development of the Assets of the Muslim Waqf in the Land of Israel v. Simon Wiesenthal Center Museum Ltd., (Oct. 29, 2008)

[77]      CA 7918/15 Doe v. Friedman, (Nov. 24, 2015) [https://versa.cardozo.yu.edu/opinions/doe-v-friedman]

[78]      HCJ 6167/09 Avni v. State of Israel, (Nov. 18, 2009)

[79]      CA 1835/11 Avni v. State of Israel, (Nov. 17, 2011)

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

[81]      HCJ 794/98 Obeid v. Minister of Defence, IsrSC 58(5) 769 (2001)

[82]      HCJ 6063/08 Shachar v. Government of Israel, (July 8, 2008)

[83]      HCJ 10203/03 Hamifkad Haleumi v. Attorney General, (Aug. 20, 2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[84]      HCJ 4491/13 Academic Center for Law and Business v. State of Israel, (July 2, 2014)

[85]      HCJ 1125/16 Mari v. Commander of Military Forces in the West Bank, (March 31, 2016)

[86]      HCJ 7040/15 Hamed v. Military Commander in the West Bank, (Nov. 12, 2015)

[87]      HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank, (Oct. 31, 2017)

[88]      HCJ 7523/11 Almagor Terror Victims Association v. Prime Minister, (Oct. 17, 2011)

[89]      HCJ 9446/09 Karman v. Prime Minister of Israel, (Dec. 1, 2009)

 

Decisions of the European Court of Human Rights cited:

[90]      Sabanchiyeva v. Russia Judgment ECHR 38450/05 (6/6/2013)

[91]      Maskhadova v Russia Judgment ECHR 18071/05 (6/6/2013)

[92]      Pretty v. The United Kingdom ECHR 2346/02 (2002)

[93]      Pannulullo v. France ECHR 37794/97 (2001)

[94]      Girard v. France ECHR 22590/04 (2011)

[95]      Dodsbo v. Sweden ECHR 61564/00 (2006); Hadri-Vionnet V. Switzerland ECHR 55525/00 (2008)

[96]      Hadri-Vionnet v. Switzerland ECHR 55525/00 (2008)

 

 

 

 

JUDGMENT

 

Justice Y. Danziger:

The question before us is whether reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the Defence Regulations) authorizes the Military Commander to order the temporary burial of terrorists in order to hold their corpses for the purpose of negotiations.

Background of the Petitions

1.         At the end of 2016, the State of Israel decided to update its policy on returning the corpses of terrorists to their families. The decision was made by the Government's Ministerial Committee on National Security Affairs (the State Security Cabinet), and recorded in its resolution:  "A Uniform Policy on Handling the Corpses of Terrorists" (B/171) (unclassified version) (January 1, 2017) (hereinafter: the Cabinet Decision). The Cabinet Decision was the first instance where a clear policy was enunciated on the issue of holding terrorists' corpses by the State for negotiation purposes. This policy determines that, as a general rule, terrorists' corpses are to be returned to their families under restricting conditions that would ensure that public order is maintained. However, two conditions to this rule were established, under which the corpses of terrorists would not be returned to the families, but be kept by the State of Israel in a temporary burial. The first exception was terrorists belonging to Hamas. The second concerned the bodies of terrorists who had carried out a terrorist act classed as "particularly exceptional". The State Security Cabinet thought it justified to hold on to these corpses specifically, as they might prove to have "special symbolic context", and keeping them might help the State of Israel reach an agreement on the exchange of corpses and prisoners held by enemies. The Cabinet's Decision was established as a general policy, while the actual implementation of the policy was delegated to the Military Commander in accordance with the authority granted to him by law, under reg. 133(3) of the Defence Regulations, to order the place and time for burying the dead.

 

2.         The Cabinet Decision was not made in a vacuum, but must be understood in context and in terms of its timing. Starting in early 2015, Israel faced a wave of terrorist attacks dubbed the "Intifada of the Individuals". This reality led the political echelon and the security establishment in Israel to make various decisions and, inter alia, also reconsider the policy on holding terrorists' corpses for negotiation purposes. Accordingly, the Cabinet undertook an administrative procedure, wherein it was presented with various professional opinions and assessments by political and security entities involved in contacts with enemies, including the Coordinator of POWs and MIAs in the Prime Minister's Office, the Israel Security Agency, the National Security Council, and the Israel Defence Forces. The senior lawyers at the Ministry of Justice also pondered the issue in a number of meetings. The 2004 position of then Attorney General M. Mazuz was also presented to the decision makers. According to the State, the position of Attorney General Mazuz was that terrorists' bodies should not be held based on an indefinite need to keep "bargaining chips" for some future negotiation, but that the possibility should not be excluded given special reasons for holding the bodies, including a concrete deal with an enemy for an exchange of corpses (hereinafter: the Attorney General's 2004 Decision).

 

3.         Since the Cabinet Decision was taken, the State of Israel has held a few dozen terrorist corpses in its custody. These were held by virtue of orders or decisions issued by the Military Commanders or police commanders. The large majority of corpses—more than 40—were returned to the terrorists' families in keeping with the rule laid down in the Cabinet's Decision. On the other hand, the minority of corpses, which the State claims fall under the exceptions defined in the Cabinet's Decision, were held by the State. At this point in time, nine terrorist corpses are held by the State of Israel. Seven were buried temporarily under orders issued by the Military Commander. Two have yet to be buried, after legal proceedings in their matter resulted in the issuance of interim orders preventing their burial. The Petitioners are family members of six of the terrorists whose corpses are currently held by the State of Israel: Fadi Ahmad Hamdan Qunbar, who carried out a terrorist attack at the Armon HaNatziv Promenade on January 8, 2017, murdering IDF soldiers Shira Tzur, Yael Yekutiel, Shir Hajaj and Erez Orbach of blessed memory, and injuring 18 more (HCJ 6524/17(; Muhammad Tra'ayra, who carried out a terrorist attack on June 30, 2016 in Kiryat Arba, murdering the girl Hallel Yaffa Ariel of blessed memory (HCJ 8503/16); Muhammad al-Faqiah, who participated in a terrorist attack on July 1, 2016, in which Rabbi Michael Mark of blessed memory was murdered and members of his family injured (HCJ 8503/16); Masbah Abu Sabih, who carried out a shooting attack on October 9, 2016, murdering Mrs. Levana Malihi and Police Sergeant First Class Yossef Kirma of blessed memory and injuring others (HCJ 285/17); Abd al-Hamid Abu Srur, who carried out a terrorist attack in a Jerusalem bus on April 18, 2016, injuring tens of people (HCJ 4466/16); and Rami al-Ortani, involved in an attempted terror attack  on July 31, 2016 (HCJ 8503/16).

 

            The State of Israel argues that holding these terrorist corpses might help reach a concrete deal for the exchange of corpses and prisoners with Hamas, which holds the corpses of IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, and holds Israeli civilians Avera Mengistu and Hisham a-Sayed.

 

            4.         To complete the factual picture, we would note that the State of Israel has transacted past deals with terrorist organizations for the exchange of prisoners and missing persons. A substantial part of the deals involved returning bodies of terrorists affiliated with the organizations in question as part of the "consideration" that the State of Israel "paid". An unclassified affidavit submitted by Head of the POW and MIA Department of the IDF Intelligence Directorate stated that in 1991, 1996, 1998, 2004, 2007 and 2008, the State of Israel concluded deals for the exchange of prisoners and missing persons with enemy organizations, in the context of which it handed over 405 bodies of dead terrorists, along with living detainees and prisoners. Within the framework of these deals, the State of Israel repatriated, among others, IDF fallen soldiers Samir Asad, Yossef Fink, Rahamim Alsheikh, Itamar Ilya, Benny Abraham, Omar Suwad, Adi Avitan, Gabriel Dawit, Ehud Goldwasser and Eldad Regev. These data only relate to deals transacted by the State of Israel with non-state terrorist organizations, not to deals concluded with enemy states at the end of Israel's wars and military campaigns.

 

The Parties' Arguments and the Proceedings

 

5.         The main argument in the petitions is that the State of Israel has no authority to hold the terrorists’ corpses. The Petitioners point to the absence of any arrangement under Israeli or international law authorizing the Military Commander to hold terrorists’ corpses for purposes of negotiation by way of temporary burial or any other way. Beside this key point, the Petitioners further argue that to hold terrorists’ corpses for negotiation purposes is a practice that disproportionately violates the dignity of the dead and that of the families seeking to bring them to burial, and one that constitutes collective punishment against the terrorists' families for no fault of their own.

 

6.         According to the State, the Military Commander does have authority to order the temporary burial of terrorists to be held for negotiation purposes. As the State sees it, reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the place where a person’s body is to be buried. This is also the basis for his authority to order the temporary burial of terrorists who were involved in terrorist attacks, for negotiation purposes. According to its position, this source of authority constitutes explicit, primary legislation in Israel's domestic law that suffices to allow the Military Commander to act. According to the State, this source of authority is also consistent with international law. The State adds that terrorists' corpses are being held for a proper purpose and proportionately, considering that this practice is meant to help bring back Israeli captives and missing persons.

 

7.         The proceedings were conducted in a number of stages. In brief, we held several hearings. The petitions were initially heard separately, before different panels, and were later joined into a single proceeding. At a certain point, interim orders were issued with respect to the two yet-unburied terrorists, as well as orders nisi in all the petitions. The State was given an opportunity to present its position in two separate response affidavits. In addition, the State submitted a number of updates and answers to questions addressed to it by the Court. By the end of the judicial proceedings, the scope of dispute was clarified, and the questions requiring decision, which I will discuss below, were defined.

 

Discussion and Decision

 

8.         As noted above, the central question to be decided in the petitions is whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to order temporary burial of terrorist corpses with a view to hold them for negotiation purposes.

 

Preliminary note: On the relationship between the Cabinet Decision and the authority of the Military Commander, and on the requirement for a specific source of authority for the Military Commander's action

 

9.         As noted, the decision by State Security Cabinet was established as a general policy in the present matter, whereas its execution and implementation were delegated to the Military Commander under the authority granted to him, as argued, in reg. 133(3) of the Defence Regulations. This legal situation deserves discussion and a preliminary clarification.

 

10.       The Ministerial Committee on National Security Affairs (the State Security Cabinet), as we know, is responsible for shaping the government's policy on matters pertaining to the country's security and foreign relations. Its members include, among others, the Prime Minister, Minister of Defence, Minister of Justice, Foreign Minister, Minister of Public Security and Minister of Finance. The principal legal norms that regulate the Committee's activity are found in sec. 31(e) of Basic Law: The Government, in sec. 6 of the Government Law, 5761-2001, and in the Government Work Regulations. The areas covered by the Committee are decided by dedicated government decision. Currently, Decision 41 of the 34^th Government, "Ministerial Committee on National Security Affairs (The State Security Cabinet)" (May 31, 2015) states that the Committee may deal with a number of areas, including the State of Israel's security policy and foreign relations. Cabinet decisions have the same binding validity as government decisions, namely: they are decisions by the executive branch, not provisions that have normative status like a law enacted by the legislature. With that said, it should be clarified that decisions made by the Cabinet lie at the heart of the executive branch's prerogative, and the degree of judicial intervention therein is accordingly highly restrained and limited for the most part (see: HCJ 7893/09 Almagor - Terror Victims Association (R.A.) v. Government of Israel [1],  para. 3 ; HCJ 6063/08 Shahar v. Government of Israel [2], para. 4; HCJ 5856/08 Farhangian v. Government of Israel [3], para. 5; HCJ 914/04 Victims of Arab Terror International v. Prime Minister [4], para. 2; HCJ 9290/99 MMT Terror Victims HQ (R.A.) v. Government of Israel [5], 12).

 

11.       Policy decisions reached by the government via the State-Security Cabinet direct and obligate the branches of government. One such branch is the Israeli Military Government and its commanders. The military echelon and its commanders often implement orders in line with the policy laid down by the political echelon, serving as the long arm of the government in these cases. There is nothing wrong with that, as long as the actions of the military echelon and its commanders are legal per se. And note that the Military Commander, in exercising governmental powers, is required to implement the political echelon's policy, but in doing so remains subject to and committed to the principles of Israeli administrative law. Within this framework, he must act in accordance with the rules of administrative authority. As previously held: "The Military Commander is authorized, and even obligated, to act in the area under his command in a way consistent with the policy set by the government, provided that, as part of his discretion, he acts in accordance with the authority granted him under any law" (HCJ 9594/09 Legal Forum for the Land of Israel v. Ministerial Committee on National Security Affairs [6], para. 15; and also see: HCJ 548/04 Amana – The Settlement Movement of Gush Emunim v. Commander of the IDF Forces in the Judea and Samaria Region [7],  379; HCJ 2717/96 Wafa v. Minister of Defence [8], 855; HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander [9], 537-538).

 

12.       We should make it clear that while the government often outlines the policy for the activity of the public administration, its decision does not supplant the need for the executive echelons to have sources of authority. In reality, the government often determines a general policy, which is then supposed to be carried out by administrative organs based on specific authority granted to them by law. The government formulates policy in some area—such as housing, security, support, pensions, education, etc.—but clearly not just any administrative agency acting under the government can undertake its implementation, but only those bodies vested with the authority to do so. Accordingly, it has been held, for example, that the government may decide that, as a matter of policy, it wants to release Palestinian prisoners within the framework of negotiations with enemies. Yet, it has been held that this policy does not supplant the need that action taken by administrative organs be in accordance with authority granted to them by law. It has been held that while the political echelon's authority still stands, "the authority to decide the release of prisoners before serving their full sentence is not the government's to make", but lies instead with others holding executive powers, among them the President of Israel and the Military Commanders. It was thus made clear that in order to order the release of Palestinian prisoners, it is not enough for government to set a policy, but that a given authority granted to the executive echelon must be exercised (HCJ 1539/05 MASHLAT – Law Institute for the Study of Terror and Assistance to Terror Victims v. Prime Minister [10], [para. 3).

 

13.       The requirement for a specific source of authority for the action of the Military Commander derives from rule of law and the principle of administrative legality. Any administrative organ must operate within the confines of the authority granted it by law. This principle is the cornerstone of administrative law. It makes it incumbent upon administrative agencies to act according to the law, thus limiting the power of government and ensuring individual liberties. The administrative obligation that applies to the Military Commander to act by authority applies regardless of the nature and wisdom of his decision. Even "good" administrative action or action arising out of an "administrative need" can be found to be illegal in the absence of a source of authority (LCA 2558/16 A. v. Pensions Officer – Ministry of Defence [11], para. 37; CA 7368/06 Luxury Apartments Ltd. v. Mayor of Yavneh [12], para. 33; HCJ 1640/95 Ilanot Hakirya (Israel) Ltd. v. Mayor of Holon [13], 587; Dahpne Barak-Erez, Administrative Law, vol. I, 97-98 (2010) (Hebrew); Baruch Bracha, Administrative Law, vol. I, 35 (1987) (Hebrew); Yitzhak Zamir, Administrative Authority, vol. I, 74-76 (2^nd ed., 2010) (Hebrew) (hereinafter: Zamir, Administrative Authority).

 

14.       When the administrative act infringes human rights, not only is the administrative entity required to point to a source of authority for its action, but the enabling provision must meet constitutional requirements. Inter alia, it must be anchored in primary legislation, in a special provision of law intended to permit the violation of the fundamental right. In addition, it must be clear, specific and explicit. This is what this Court has long held, and this principle was eventually even anchored in sec. 8 of Basic Law: Human Dignity and Liberty, which provides that a violation of basic rights protected under the law shall only be permitted "by virtue of express authorization in such law" (see: HCJ 6824/07 Manaa v Israel Tax Authority [14]; HCJFH 9411/07 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion [15]; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [16], 762; HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel [17], 831 (hereinafter: the Public Committee case); HCJ 5128/94 Federman v. Minister of Police ]18], 653;  HCJ 355/79 Katlan v. Israel Prison Service [19]; CrimA 40/58 Attorney General v. Ziad [20]).

 

15.       In our case, the actions of the Military Commander involve a violation of human rights. This Court has often held that the right to human dignity also gives rise to the rights of the dead and their family members to bring the deceased to a proper, dignified burial, which will allow them to commune and commemorate. These rights have been recognized in the case law regardless of the identity of the deceased, even when they were terrorists or enemy soldiers. The background for this is the general convention that human rights are granted to all people as such, even if they fall under the definition of "enemy". For our purposes, it is indeed an accepted convention that even the most abhorrent murderer has the right to burial, and his family has a right to bury him. This convention may raise difficult emotional responses, especially in those who have suffered from the deceased’s actions, but it is necessary in a regime that respects human rights, as often explained in the case law (see: LCA 993/06 State of Israel v Dirani [21], para. 54; HCJ 52/06 Al-Aqsa Company for the Development of Islamic Waqf Property in the Land of Israel Ltd. v. Simon Wiesenthal Center Museum Corp. [22], paras. 190-194; HCJ 3114/02 MK Barake v. Minister of Defence [23], (hereinafter: the Barake case); HCJ 7583/98 Bachrach v. Minister of the Interior [24], 841-842; HCJ 6195/98 Goldstein v. GOC Central Command [25], 330 (1999); HCJ 3933/92 Barakat v. GOC Central Command [26], 6 (hereinafter: the Barakat case); Aharon Barak, Human Dignity: The Constitutional Right and Its Daughter Rights, vol. I, 381-383 (2014) (Hebrew) [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)].

 

16.       To complete the picture, we should note that the State did not dispute the necessity that the action by the Military Commander in this case be based on some specific authority granted by explicit, primary legislation. The State agreed with this, and did not raise any alternative argument. In particular, the State did not argue that the Military Commander's action in our case could be based on residual or inherent powers of the government. Note, in this context, that it is possible to imagine situations in which the government might lay down some general policy, where it would hold some of the authority involved in its execution as inherent power. In these situations, there may be scenarios where the policy would be implemented by an administrative organ, as the long arm of government, even in the absence of a specific source of authority in the law for its action (see sec.  3 of Basic Law: The Government; HCJ 11075/04 Girby v. Minister of Education, Culture and Sport – Chair of the Higher Education Council, [27], para. 15; "The Authority to Enter a Contractual Undertaking on Behalf of the State", Attorney General’s Guidelines 6.2000 (May 15, 2003); Zamir, Administrative Authority, 423). However, these are concrete, well-defined situations, whereas in most situations—especially those involving the violation of human rights, as in our case—government policy cannot be executed based on residual powers granted to the government. As noted, the State never even raised such an argument in this case.

17.       To summarize the point: The decision by the State Security Cabinet was established as a general policy, but its execution and implementation were delegated to the Military Commander under the authority granted to him by law. In this legal state of affairs, we must examine whether the law does have a provision authorizing the Military Commander to implement and execute the Cabinet's policy. Furthermore, if an enabling provision of law exists, we would then also have to examine whether it is anchored in explicit, specific primary legislation, seeing as the actions that the Military Commander seeks to carry out violate human rights,.

 

Does Regulation 133(3) of the Defence Regulations constitute an explicit, specific primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes?

 

18.       Regulation 133(3) of the Defence Regulations states as follows:

 

Inquests, etc.

133.    (1)  (Cancelled) (2)  Notwithstanding anything contained in any law, where a member of the Government's forces has died in Israel in any manner or in any circumstances whatsoever, it shall be lawful for an Army Medical Officer to issue a certificate of death of such person, and such certificate, upon being countersigned on behalf of the General Officer Commanding, shall be full and sufficient authority for the burial of the body of such person. (3)  Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

 

19.       Answering the question whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to make a decision on the temporary burial of terrorist bodies for negotiation purposes requires some interpretation. While the starting point for the interpretation is the regulation's language, it is not, as we know, the end point, given that among the existing linguistic possibilities, the interpreter must choose the one that best fulfills the purpose of the law. The purpose of legislation is the goals, values, policy, social functions and interests that the legislation is meant to fulfil. The purpose of legislation is a normative concept, which consists of the subjective and objective purposes of the legislation. The subjective purpose is the specific goal that the legislature sought to achieve through the law ("the legislative intent"). The objective purpose is the one that the legislation was meant to realize in our legal system as the system of a democratic society. Both purposes can be deduced from the language of the law, its legislative history and other external sources (HCJ 6536/17 Movement for Quality Government in Israel v. Israel Police [28], para. 30; HCJ 962/07 Liran v. Attorney General [29], paras. 33-34; HCJ 693/91 Efrat v. Director of the Population Registry in the Ministry of Interior {30], 764 (1993); Aharon Barak, Interpretation in Law: Interpreting Legislation (1992) Hebrew); Aharon Barak, Purposive Interpretation in Law (2003) Hebrew) (hereinafter: Barak, Purposive Interpretation) [English edition 2011]).

20.       Looking at the language of reg. 133(3) of the Defence Regulations, one is led to conclude that it cannot be considered an "explicit" source of authority for the Military Commander's action. The regulation's language refers to a situation where the security forces are in possession of a corpse. In this situation, the regulation authorizes the Military Commander to issue a burial order, and order who will bury the corpse, and at what place and hour it will be buried. While the regulation grants the Military Commander authority to issue such orders with respect to the body "of any person", it does not specify the circumstances under which  the authority is to be exercised. It does not make explicit whether the Military Commander's authority to make decisions concerning the burial of dead persons applies only in "times of emergency", or whether the authority is meant to exist in other contexts as well. It does not make clear whether the Military Commander's authority to make decisions on burial only exists when a dead person cannot be brought to burial in the acceptable, ordinary way, or in other circumstances as well. Furthermore, and this is the crux of our issue: The language of the regulation does not address the question of whether the authority granted to the Military Commander to order a burial also applies to temporary burial for negotiation purposes, which in no way constitutes burial in the usual sense, but a holding of the body, a holding by burial, where there can be no doubt that its circumstances and purpose differ from a classic, normal act of burial. In this context, the language of the regulation is vague and cannot be considered an explicit source of authority.

21.       Examining the purpose of reg. 133(3) of the Defence Regulations leads to the conclusion that the regulation was never meant to authorize the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes. As we will explain, when one traces the legislative history of the regulation, examines its internal and external logic, applies the presumptions of purposive interpretation, and looks at Israeli law and international law as they relate to issues similar to the holding of corpses, the result is a sharp, clear picture: The Mandatory legislator, followed by the Israeli one, never envisaged a situation relating to the temporary holding of terrorist bodies for negotiation purposes. They never imagined that the Military Commander would exercise his authority in such circumstances. And in any case, reg. 133(3) does not include the balances required between the conflicting interests and rights in this area. The regulation also makes no reference to necessary information related to exercising the authority in the unique situation of the temporary burial of corpses for negotiation purposes, among them: circumstances that would justify the temporary burial of a body; how long a body may be held in temporary burial; the authority and timing for disinterment after a deal is struck; the requirements for documentation and registration of the body and the burial; obligations to transmit information regarding the body, etc. The regulation is deafeningly silent on all the above, and cannot be taken to imply any intent by the legislator to grant the Military Commander authority and power to address them or make decisions in that regard.

22.       On examining the legislative history of reg. 133(3) of the Defence Regulations, one finds that it is, in fact, a later incarnation of reg. 19C of the Emergency Regulations, 1936 (hereinafter: the 1936 Emergency Regulations). Chronologically following the regulation's evolving formulation suggests that the regulation had seen a number of transformations and changes. In its historic formulation, as it appeared in the 1936 Emergency Regulations, the regulation mentioned a burial authority under very specific circumstances, where a person was hanged in one of the two central prisons in the cities of Acre and Jerusalem. With regard to these circumstances, the regulation stated, as published in the Hebrew Official Gazette, stated: "Notwithstanding anything stated in any Ordinance or law, the District Commissioner may order that the body of any person who has been hanged at the Central Prison in Acre or the Central Prison in Jerusalem shall be buried in the cemetery of the community to which such person belongs…", and in its English-language formulation, as published in the official gazette in the English language, the Regulation similarly stated that: "Notwithstanding anything contained in any Ordinance or law it shall be lawful for the District Commissioner to order that the body of any person who has been executed at the Central Prison, Acre, or the Central Prison, Jerusalem, shall be buried in such cemetery of the community to which such person belongs…". The title of the Regulation at the time was "Death certificates, inquests and burials".

            Then, in 1945, reg. 19C was copied from the 1936 Emergency Regulations into reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the 1945 Emergency Regulations). The language of the regulation remained the same, except for minor changes, but its location was moved to the part devoted to "Miscellaneous Provisions". In addition, the title of the Regulation was shortened and re-defined as "Inquests, etc." A few years later, in January 1948, the Regulation underwent its last revision, fixing it in its current version (hereinafter: the 1948 Defence Emergency Regulations). As part of this revision, the High Commissioner announced his decision to change the regulation such that the District Commissioner would be replaced by the Military Commander as the administrative organ vested with the authority, and such that his scope of authority would be extended to allow him to order, inter alia, the burial of any person's dead body—i.e. not just a "person who has been executed at the… prison"; and anywhere, i.e. not just in the "cemetery of the community". The new, updated version of reg. 133(3) of the Defence Regulations in Hebrew is the one quoted above. The updated regulation was officially published by the High Commissioner in English, as follows: "Notwithstanding anything contained in any law it shall be lawful for the Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations".

            (For the official publications of the regulation's text, both in Hebrew and in English, from its appearance in the 1936 Emergency Regulations, through its appearance in the 1945 Defence Regulations, to its appearance in the 1948 Emergency Regulations, see: Supplement No. 2 to the Palestine Gazette, issues No. 584, 753 and 825 (of 19 April 1936, 27 January 1938 and 13 October 1938 respectively) (Palestine (Defence) Order In Council, 1931, 1937) (Regulations made by the High Commissioner under Articles IV, 6 and 10); Supplement No. 2 to the Palestine Gazette issue No. 1442 (of 27 September 1945) (The Defence (Emergency) Regulations, 1945); Supplement No. 2 to the Palestine Gazette, issue no. 1643 (of 22 January 1948) (Palestine (Defence) Order In Council, 1937) (Regulations made by the High Commissioner under Article 6) (Defence (Emergency) Regulations, 1948). We would note that the fact that the text of the regulation was also published from the outset in the Hebrew language in the official Mandatory publications makes interpretation easier, as it obviates the need to trace translation processes; compare: HCJ 1075/98 State of Israel v. Oppenheim [31], 326; CrimA 2013/92 State of Israel v. Jose [32], 825-826; CA 421/61 State of Israel v. Haz [33], 2206).

            Examining the legislative history of reg. 133(3) of the Defence Regulations reveals that never once in its process of enactment was the possibility contemplated that the Military Commander would be able to order the temporary burial of a corpse for negotiation purposes. Rather, the existing data are more consistent with the conclusion that the historical purpose of the regulation was to handle burials primarily in situations where objective difficulties arose that made it hard to return the body of the dead to the relatives. And note: at the outset, the regulation authorized the District Commissioner to order the burial of the bodies of prisoners of the Mandatory regime who were executed at the central prisons in Jerusalem and Acre. Naturally, these prison executions made it necessary to regulate the handling of corpses. Indeed, the Mandatory authorities followed clear rules in this regard: The rule was to hand over the body of those executed to their relatives to be buried normally as per the dead person's customs. At times, however, an objective obstacle arose to transferring the dead person's body to his relatives. Such was the case, for example, when the relatives did not claim the body, whether because they had no knowledge of the ill fate that had befallen him (for example, because he was an illegal immigrant), or due to their fear of turning to the Mandatory authorities. In these cases, the Mandatory legislator sought to guarantee that the dead person would be brought to burial under proper, dignified arrangements, as consistent as possible with his customs and practices (reg. 19C of the 1936 Emergency Regulations instructed that the deceased should be buried "in such cemetery of the community"). For this purpose, the Mandatory administrative organs were granted various powers. Thus, reg. 302 of the Prison Regulations, 1925, stated that the Prisons Commissioner would be allowed to order how a body should be handled. Similarly, reg. 19C of the 1936 Emergency Regulations, later copied into the 1945 and 1948 Emergency Regulations, authorized the District Commissioner to order the burial of the corpse. This is how these things are described by Dr. Joshua Caspi in his comprehensive article Prisons in Palestine during the Mandate Period, 32 Cathedra  Quarterly - A Journal for the History of Eretz-Israel, (Yad Ben Zvi), 171-172 (1984) (Hebrew):

The hanging was usually carried out in secret, at night or in the early morning, when the other prisoners were sleeping, by 08:00 AM at the latest (reg. 298). Following the hanging, the physician would check whether the convict had already expired. The body was left hanging for one hour and then handed over to relatives for burial. If the relatives did not want the body, it was buried by the authorities (Regulation 302) (Emphasis added – Y.D.).

As noted, the regulation's historic context is more in keeping with the conclusion that it was primarily meant to manage exceptional situations where the corpse could not be transferred to the person's relatives. This conclusion also appears logical in relation to the regulation's later versions. While the wording of the regulation did undergo changes over the years, it can be reasonably assumed that the Mandatory legislator did not seek to change the rule whereby the body of the deceased person should be handed over to its relatives, if possible. This also holds true for the wording of the 1948 Regulation. While the wording of the regulation was changed at the time, and the holder of the authority was changed, it stands to reason that, at this point too, the regulation mainly targeted situations where the security forces had a corpse that, for some reason or another, could not be delivered to the dead person's relatives, whether because it was not possible to identify the dead individual, because no one came forward to claim the body, or because it was held by the security forces during confrontations. In these situations, where it was not clear where and how the body should be buried, the Military Commander was granted authority to make decisions, based on the understanding that he was the one in charge "on the ground" who could ensure a proper, dignified burial. It is hard to accommodate an inverse conclusion whereby the purpose of the authority was to give the Military Commander "general" power to order the burial of dead individuals across a large variety of circumstances, even when their corpses could be handed over to their families. In any cast, and this is the crux of the matter, even if we assume that the historic purpose of the regulation was to grant the Military Commander "general" power over burials, it is hard to adopt a conclusion that the intention was to also allow him to issue orders in a situation involving the temporary burial of terrorist bodies for negotiation purposes.

23.       The location and context of reg. 133(3) of the Defence Regulations within the fabric of the legislation likewise support the conclusion that the power was not meant to authorize the Military Commander to order the temporary burial of terrorist bodies in order to hold them for negotiation purposes. Regulation 133(3) appears under part XIV of the Defence Regulations, devoted to "Miscellaneous Provisions", as one of several secondary regulations. The burial powers granted therein do not constitute a unique, specific and complete legal arrangement dedicated to the holding of enemy bodies for negotiation purposes. One might have expected that a legal system desirous of adopting a practice of holding terrorist bodies for some reason or another would do so by means of a unique, concrete legislative arrangement wholly devoted to regulating the matter. While reg. 133(3) of the Defence Regulations grants the Military Commander – at most – broad "general" powers from which one might derive action, even the State does not dispute that it does not represent a dedicated legal arrangement devoted to regulating the temporary burial of terrorist bodies. The fact that reg. 133(3) is at most a "general" arrangement under "Miscellaneous Provisions" undermines the State's claim that it should be seen as an "explicit" legislative arrangement. Parenthetically, it should be noted—and we shall return to this later—that there are, in fact, few countries in the world whose legal code includes a dedicated legislative arrangement to allow the holding of terrorist bodies, and even those countries that have decided to include such an arrangement in their legal code have done so by way of a dedicated, specific legislative arrangement, radically different from the one in the Defence Regulations.

24.       Implementing the accepted interpretive presumptions as to purpose in the Israeli legal system also reinforces the conclusion that reg. 133(3) of the Defence Regulations cannot be construed to grant the Military Commander broad authority to order the temporary burial of terrorist bodies for negotiation purposes. Inasmuch as the provisions of the arrangement violate human rights, the interpretative rule that a legal provision should be interpreted narrowly and strictly applies. Moreover, there is the purposive presumption that the goal of a legal provision is to inflict the least harm to human rights. In our case, as noted, the language of the regulation does not establish explicit authority to order the temporary burial of terrorists for negotiation purposes. Under these circumstances, the regular rules of interpretation relating to the protection of human rights obtain (for the rules and interpretative presumptions relating to the protection of human rights, see: Barak, Purposive Interpretation, 224; HCJ 7803/06 Abu Arfa v. Minister of Interior [34], para. 46;  LCA 3899/04 State of Israel v. Even Zohar [35], 317; CA 524/88 "Pri Haemek". v. Sdeh Ya'akov [36], 561). Another interpretative presumption that might apply in our case has to do with the compatibility of domestic law with international law (see Barak, ibid). As I shall explain in detail, the present case raises serious questions about the relationship between domestic Israeli law and the international humanitarian law treating of armed conflicts, and international human rights law.

25.       An examination of the case law of this Court in similar contexts also reinforces the conclusion that reg. 133(3) of the Defence Regulations cannot be interpreted as the State would have it. We would first note the absence of any prior ruling directly concerned with the Military Commander's authority to order the temporary burial of terrorist bodies by virtue of the regulation. While it was previously held that the regulation might constitute a source of authority for his decision to order a funeral to take place at a specific hour (the Barakat case [26]), and the Court even sanctioned a decision not to return to Hamas the body of a terrorist until information about the burial place of a fallen IDF soldier was provided (HCJ 6807/94 Abbas v. State of Israel [37]). However, the aforementioned rulings did not take up the question of the Military Commander's authority to order the temporary burial of bodies for negotiation purposes. It should be further noted that the State had previously presented its position on reg. 133(3) of the Defence Regulations, but the Court was not required to express its opinion since the petitions became moot (See: HCJ 4118/07 Hanbali v. State of Israel [38]; HCJ 9025/01 Awadallah v. Commander of IDF Forces in Judea and Samaria [39]); HCJ 8086/05 Masri v. Commander of IDF Forces in Judea and Samaria [40]; HCJ 8027/05 Abu Selim v. Commander of IDF Forces in the West Bank [41]). In any case, despite the absence of rulings directly pertaining to the question of the Military Commander's authority to order the temporary burial of terrorist bodies by virtue of reg. 133(3) of the Defence Regulations, important debates held in similar contexts can be found in the case law.

            An examination of Israeli case law shows that most petitions similar to this one addressed situations where terrorist bodies were held in order to maintain public order. The State's position in those situations was not based on the Cabinet Decision or on reg. 133(3) of the Defence Regulations. The State argued that returning terrorist bodies to their families might lead to riots and to mass funerals that would lead to overt glorification of and identification with the acts of the terrorists, and become a locus of incitement (for recent examples, see: HCJ 5887/17 Jabareen v. Israel Police, [42] (hereinafter: the Jabareen case); HCJ 9108/16 Shaludi v. Commander of IDF Forces in the West Bank [43]; HCJ 9495/16 Hagug v. Commander of IDF Forces in the Judea and Samaria Area [44]; HCJ 2204/16 Alian v. Israel Police [45]; HCJ 2882/16 Awisat v. Israel Police [46]; HCJ 7947/15 A. v. Israel Defence Forces [47]). The situations in which terrorist bodies are held in order to maintain public order raise questions that are distinct from those in our case, and moreover, as noted, the examination mostly concerns other sources of authority. In any case, and this is the main point, the decisions in those situations also emphasized that terrorist bodies could not be held in the absence of a specific source of authority, anchored in explicit primary legislation.

            Of particular importance in this context is the judgment recently rendered in the Jabareen case [42], which stated that the Israel Police was not authorized to hold terrorist bodies as a condition for obtaining their families' consent to the conditions under which the funerals would take place. It was made clear that, for the purpose of holding the corpses, the Israel Police was obligated to point to a specific dedicated source of authority anchored in explicit primary legislation. The Police's position in the proceedings was that secs. 3 and 4A of the Police Ordinance [New Version], 5731-1971 constitute such an explicit source of legislation. The Police explained that sec. 3 of the Ordinance granted it broad authority to engage in the maintaining of public order and the safety of persons”, and that sec. 4 of the Ordinance authorized every police officer “to undertake any action that is necessary” to prevent serious harm to the safety of life and property. As the Police saw it, these general, broad powers were sufficient to allow it to hold on to terrorist bodies. As noted, this position was rejected by the Court for the same reason stated above in regard to reg. 133(3) of the Defence Regulations. It was held that "this position of the Police is inconsistent with the requirement for 'explicit' authorization in all that concerns an action that violates basic rights", since the existing sections in the Police Ordinance are general and were not intended to grant the police specific powers in regard to holding corpses (ibid, para. 9). Consequently, it was held that the Police would return the terrorists' bodies to their families. As noted, despite the difference in circumstances between the Jabareen case and the case before us, the reasoning regarding the authority requirement is identical.

            A similar ruling on the requirement for a source of authority, from which an analogy can be drawn to our case, was rendered in CrimFH 7048/97 Does v. Minister of Defence [48] (hereinafter: the Bargaining Chips case). In that case, the question debated was whether sec. 2(a) of the Emergency Powers (Detention) Law, 5739-1979, constituted a source of authority for holding live detainees as bargaining chips. This Court ruled by majority—per Justices A. Barak, S. Levin, T. Orr, E. Mazza, I. Zamir and D. Dorner, and contrary to the dissenting opinions of Justices M. Cheshin, Y. Kedmi and J. Turkel—that the answer to the question was negative. It was explained that, indeed, the language of the Detention Law gave the Minister of Defence general, broad authority to detain an individual "on grounds of national security or public safety" in a way that might also accommodate a reading that he may arrest detainees as bargaining chips. However, it was held that such a possibility "did not come up for discussion, and was not, in fact, examined, by those dealing with the tasks of legislation" (ibid, 739). In those circumstances, it was held that it was not possible to extend the boundaries of the authority and interpret the provisions of the Detention Law as if they were meant to grant detention powers in such situations as well. It should be noted that the ruling in the Bargaining Chips case was also rendered with the prospect of finalizing deals for swapping prisoners and missing persons floating in the background. Even so, and despite the understandable human difficulty, the ruling was that, in the absence of a dedicated source of authority in explicit primary legislation, live detainees could not be held as bargaining chips. This was aptly summarized by Deputy President S. Levin in his ruling: "It would be naïve and even dangerous to deprive the State of appropriate means for freeing its fighters.  However, the statute has not placed such a tool at its disposal. In my opinion, in order to place it as its disposal,  a different source or grounds for its authority is required in primary legislation for a matter that prima facie has significance of a primary nature. " (ibid, 753).

            It is true that  drawing an analogy from the ruling in the Bargaining Chips case to our case is not simple. There is no denying that holding live detainees—a decision that violates the right to freedom in the narrow, nuclear sense—carries different weight than a decision to hold corpses. We should also bear in mind is that the judgment in the Bargaining Chips case also included a minority opinion that cannot be ignored, according to which nothing prevents deriving specific authority to hold live detainees  from the general authority in the Detention Law, in circumstances where the other side to a conflict also holds prisoners and missing persons. In addition, we have before us various critiques of the judgment published in the professional literature, as well as academic discussions on the subject (see and compare: Emanuel Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects, 287-259 (2004) (Hebrew) [published in English as: The Struggle of Democracy against Terrorism: Lessons from the United States, the United Kingdom, and Israel (2004)]; Eitan Barak, Under Cover of Darkness: The Israeli Supreme Court and the Use of Human Lives as “Bargaining Chips", 8 Plilim 77 (1999) (Hebrew) [published in English in 3(3) International Journal of Human Rights (1999)]). Still, and this for me is the crux of the matter, one cannot dispute that the rule laid down in the majority in the further hearing on the Bargaining Chips case also clearly supports the conclusion that actions of the kind in question—like those that the State wishes to carry out in the case before us via the Military Commander—must rest on authority based in explicit primary legislation intended to regulate the delicate, complex situation of holding live detainees, as well as terrorist bodies, for negotiation purposes.

26.       The position of Attorney General M. Mazuz in 2004 also supports the conclusion that it is hard to accommodate an interpretation whereby reg. 133(3) was intended to grant the Military Commander sweeping, practically unrestricted authority to order the temporary burial of terrorist bodies for negotiation purposes. We would recall that the State claimed that the Attorney General's position was that terrorist bodies could not be held based on a theoretical need to keep "bargaining chips" for future negotiations, but that the possibility should not be ruled out if there are special reasons to hold on to the bodies. An examination of the Attorney General's decision shows that  he never addressed the question of the Military Commander's authority under reg. 133(3) of the Defence Regulations, and stated no opinion in that regard. On the other hand, the Attorney General did point out that "it is impossible to defend a general policy" of not returning terrorist bodies to their families (para. 1 of the decision); that "preventing the return of bodies is a measure that cannot be justified by a theoretical need to keep bargaining chips for future negotiations on captives and missing persons" (para. 7); and that: "a policy allowing terrorist bodies to be held in certain cases and no few cases, is inconsistent with the duty to strike a balance between the dignity of the dead and their families and considerations of security and protecting public order and safety in the area" (para. 8). Indeed, the Attorney General's position did not categorically rule out the measure of holding bodies for negotiation purposes in special situations, such as a concrete deal for the exchange of bodies. As previously noted, however, this determination was rendered under the clear assumption that there is authority to hold bodies, and in any case this should be read in light of the other determinations in his decision—which would seem to be the main point—that seek to limit such authority and confine it to specific, concrete circumstances.

27.       Interim summary: The conclusion from the interpretative analysis thus far is that reg. 133(3) of the Defence Regulations does not constitute a specific, explicit, primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes. This conclusion arises, first and foremost, from the language of the regulation, which, as explained, is at best "general" and "broad" in a manner that fails to meet the requirement for explicit legislation. It also follows from the regulation's purpose, as suggested by its historical context, inner and external logic, and its juxtaposition with rulings made in similar contexts. As explained, the Mandatory legislator, followed by the Israeli one, never considered a situation concerning the temporary holding of terrorist bodies for negotiation purposes, and did not seek to create a unique legal arrangement that would grant authority to that effect. In the next part of the judgment, I will further explain that this interpretative conclusion is even reinforced, in my opinion, in light of the provisions of international law and comparative law treating of situations of handling bodies during armed conflict or confrontation.

International Law and Comparative Law

28.       In our case, the State's consistent line of argument was predicated on the assumption that the Military Commander had a source of authority in Israel's domestic law. The State made it clear that it was not predicating its position on international law, although emphasizing that, in its view, there is no prohibition upon holding dead bodies international law. In the previous part of the decision, I examined the provisions of domestic Israeli law and arrived at the conclusion that this examination itself shows that it comprises no source of authority for holding bodies for negotiation and bargaining. However, I think it justified to go further, and also address issues relating to international law, for three reasons: First, even though the State sought to base its actions solely on domestic Israeli Law, it is possible that international law may apply at least to some of the corpses. In this context, suffice it say that some of the terrorists whose bodies are held by the State of Israel are of inhabitants of the Territory[1] "affiliated" or "identified" with Hamas in a manner that may raise questions regarding the applicability of international law. Second, the discussion about international law may play a part in the interpretation of reg. 133(3) of the Defence Regulations, since the purposive interpretive presumption is that the legislature meant to grant the Military Commander powers conforming to the provisions of international law. Third, the discussion of international law is also required as it could contribute to establishing some legal order in similar body-holding situations in the future. We would emphasize that the goal of the discussion is not to make positive assertions concerning the applicability of international law in each of the possible body-holding situations, but only to present a general picture of the subject.

 

29.       The factual situation is that the State of Israel wishes to hold bodies of terrorists who have committed acts of terrorism against its civilians. The web of laws that might apply in this situation is complex. The normative framework might be based exclusively on domestic Israeli Law. Such is the case, for example, when the terrorist is a citizen and resident of Israel, and unaffiliated with any terrorist organization. In other situations, the normative framework might include the provisions of international humanitarian law on armed conflict, as well as complementary provisions from international human rights law. When it comes to armed conflict, the provisions of the law might relate to international armed conflict or non-international armed conflict. In certain circumstances, for example when the terrorist is a resident of the Judea and Samaria area, the laws of belligerent occupation might also apply in parallel. Alongside those, one has to keep in mind that the laws of armed conflict include fine distinctions that might also bear upon the legal situation. Particularly well-known is the distinction between combatants and non-combatants or civilians (for more on the systems of laws that might apply to a body-holding situation, see: Anna Petrig, The War Dead and their Gravesites, 91 Int'l. Rev. of the Red Cross 341-369, 343 (2006) (hereinafter: Petrig); Thomas L. Muinzer, The Law of the Dead: A Critical Review of Burial Law, with a View to its Development, 34 Oxford J. of Legal Stud. 791-818 (2014)).

 

30.       The international humanitarian law applicable to armed conflict comprises various norms on burials and the handling of corpses. The key provisions are anchored in the four Geneva Conventions of 1949, and the two Protocols Additional to the Conventions of 1977. The large majority of the provisions constitute customary international law, which forms part of the binding domestic law of the State of Israel. There is no disputing that the State of Israel is committed to the First, Second and Third Geneva Conventions. On the other hand, its traditional position is that the belligerent occupation laws found in the Fourth Geneva Convention do not apply to the area of Judea and Samaria, even though it respects the humanitarian provisions included therein. In addition, the State of Israel is not party to the Additional Protocols. It has reservations about some of their provisions, but sees itself subject to their customary provisions of law (see HCJ 769/02 Public Committee Against Torture v. Government, [49], paras. 16-23; HCJ 7957/04 Mara'abe v. Prime Minister of Israel [50], 492; HCJ 2056/04 Beit Sourik  v. Government [51],  827; HCJ 698/80 Qawasmeh v. Minister of Defence [52],  (hereinafter: the Qawashmeh case); Orna Ben Naftali & Yuval Shani, International Law Between War and Peace (2006) (Hebrew); Ruth Lapidot, Yuval Shani & Ido Rosenzweig, Israel and the Two Protocols Additional to the Geneva Conventions (Policy Paper 92, Israel Democracy Institute) (2011) (Hebrew); Yoram Dinstein, The Laws of War  (Hebrew)  (1983)).

 

(For the conventions, see: The First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter: the First Geneva Convention); The Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (hereinafter: the Second Geneva Convention); The Third Geneva Convention relative to the Treatment of Prisoners of War (hereinafter: the Third Geneva Convention); The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereinafter: the Fourth Geneva Convention). For the Protocols, see: Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (Hereinafter: the First Protocol); Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977 (Hereinafter: the Second Protocol)).

 

31.       Most of the norms relating to the handling of dead bodies in international humanitarian law apply to situations of international armed conflict. The Geneva Conventions impose various obligations upon belligerent parties with respect to the evacuation, documentation, identification, registration and handling of—and the communication of information on—bodies during combat in the field. These obligations are meant to ensure proper, respectful handling of bodies during combat, which would also make it possible to know the fate of the fallen in the future. These obligations are anchored, inter alia, in arts. 16-17 of the First Geneva Convention, arts. 19-20 of the Second Geneva Convention, art. 120 of the Third Geneva Convention, and arts. 27 and 130 of the Fourth Geneva Convention (for more, see: HCJ 4764/04 Physicians for Human Rights v. IDF Commander [53], 401-404 ; the Barake case). The Geneva Conventions do not establish an obligation to return bodies within the framework of an international armed conflict. The reason for this is that the representatives of the delegations who took part in formulating them preferred leaving this option open, since some of the delegations preferred that the dead to be buried on the battlefield (see: J.S. Pictet, Commentary of Geneva Convention (1949) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 181 (1952)). However, even if the Conventions do not state an obligation to return bodies, the interpretation specified in the Red Cross's updated commentary on the First Geneva Convention (International Committee of the Red Cross Commentary of 2016 of I Geneva Convention (1949) For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1643-1647 (2016)) states unequivocally that the preferred option is to return the bodies to the family members of the fallen:

 

The obligation to ensure that the dead are buried or cremated can be satisfied in different ways.

…The preferred option is the return of the remains of the deceased to their families so that they may bury or cremate them in accordance with their religious beliefs and practices. Another reason why this option is preferable is that it enables the families to mourn their loved ones. Indeed, return of the dead to their families can be considered a basic humanitarian goal, recognized in both conventional and customary humanitarian law.

 

Furthermore, the First Protocol adds and anchors a specific requirement to return bodies in certain circumstances. The Protocol establishes that the remains of people who died as a result of occupation situations or acts of hostility should be buried respectfully, and that as soon as circumstances permit, the parties to a conflict are expected to reach an agreement on their return (art. 34 §2(c)). The Protocol further states that, if no such agreement is concluded, the party holding the bodies may offer to return them (art. 34 §3). While the articles of the Protocol state that the parties "shall conclude agreements" without imposing an obligation to return bodies, their tenor is clear. The commentary on the Protocol even clarifies that although this arrangement seemingly applies in certain circumstances only, it might serve as a good platform for returning bodies in other circumstances as well (Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, para. 1330 (1977)). Guidelines in a similar spirit also exist in the accepted interpretations of customary international law. Thus, the rules in the study by the International Committee of the Red Cross explain that a party to an international armed conflict must make every effort to facilitate the return of a dead person's remains to the other side upon its request (see: Jean-Marie Henckaerts and Louise Doswald Beck, Customary International Humanitarian Law, Vol. I: Rules, Rule 114 (2006)). As it transpires from this study, similar instructions appear in a number of military manuals, including in the United States, which announced its support of the rules of the First Protocol relative to the return of bodies in an international armed conflict.

 

32.       Beside these provisions, international humanitarian law includes norms pertaining to non-international armed conflicts. In this context, there is no denying that the law is more vague (see Petrig's criticism on this matter, 353). However, Common Article 3 of the Geneva Conventions, concerning the right to dignity, as well as certain provisions of the Second Protocol, might apply. While these provisions do not establish an explicit prohibition on holding bodies, they, too, can be used to derive obligations relating to handling deceased persons and bodies. We would further note that even in a non-international armed conflict, the provisions of customary international law may apply. In this context, the study conducted by the International Committee of the Red Cross (ibid.) specifies that even though the applicable rules on returning bodies in non-international armed conflicts are vague, the international legal and humanitarian organizations have a clear position on the subject. Thus, for example, the 22^nd Conference of the Red Cross established obligations aimed at ensuring that parties to a conflict would make every effort to facilitate the return of a dead person's remains to the other side of a conflict. Similar resolutions were rendered by the UN General Assembly in 1974, and by the 27^th Conference of the Red Cross in 1999, which stated that all parties to an armed conflict must ensure that "every effort is made... to identify dead persons, inform their families and return their bodies to them". The International Committee further added that this was required in view of the basic rights accorded to the families of the dead (ibid, p. 414).

 

33.       International human rights law—which complements the laws of armed conflict—also includes general provisions on the right to dignity and to family life that are relevant to our case. These provisions are anchored, inter alia, in the European Convention on Human Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter: the Convention against Torture); and the International Covenant on Civil and Political Rights. These provisions do not lay down an explicit ban on holding bodies, but the legal approach in this matter can be inferred from them. We would note that, in accordance with the provisions included in these conventions, the UN Commission on Human Rights issued a number of resolutions against Belarus, Tajikistan and Uzbekistan stating that their refusal to return bodies of deceased persons to their families was a violation of rights (see: Staselovich v. Belarus, Communication No. 887/1999 (2003); Bazarov v. Uzbekistan, Communication No. 959/2000 (2006); Sultanova v. Uzbekistan, Communication No. 915/2000 (2006); Khalilova v. Tajikistan, Communication No. 973/2001 (2005); Shukurova v. Tajikistan, Communication No. 1042/2002 (2006)). Another thing to note is that the UN committee in charge of verifying the implementation of the Convention against Torture looked into the Israeli government's policy on retaining terrorist bodies. In its conclusions of 2016, the Committee's recommendation to the State of Israel was to take all necessary steps to return the terrorists' bodies to their families as soon as possible (see: UN Committee Against Torture (CAT), Concluding Observations on the Fifth Periodic Report of Israel, 42-43 (2016)). Note that the Israeli government's position is that the Committee's recommendations have no binding legal force).

 

34.       The rulings of the European Court of Human Rights (ECHR) likewise attest that holding bodies is a legally problematic move from the perspective of human rights law. It was ruled, for example, that Russia's refusal to return terrorists' bodies to their families in Chechnya contravened a number of provisions in the European Convention on Human Rights (Sabanchiyeva v. Russia Judgment [90] (hereinafter: the Sabanchiyeva case); Maskhadova v Russia Judgment [91] (hereinafter: the Maskhadova case). The European Court emphasized that the decision by the Russian authorities violated protected fundamental rights, among them the right to respect for private and family life, protected by virtue of art. 8 of the European Convention on Human Rights. This conclusion was based on precedents that gave expansive interpretation to the right to family life and the possibility for relatives to unite with their kin (see, for example, Pretty v. The United Kingdom [92]; Pannulullo v. France  [93]; Girard v. France [94]; Dodsbo v. Sweden [95]; Hadri-Vionnet v. Switzerland [96]). The European Court did rule that in holding the terrorists' bodies, the Russian authorities acted "in accordance with a law" under domestic Russian Law, as required by art. 8 of the European Convention, and it even agreed to view the purpose for which the said law was enacted in domestic Russian Law as legitimate in itself. At the same time, it was ruled that the Russian arrangement did not meet the proportionality requirement, because of its sweeping nature and its failure to strike a proper balance between conflicting interests and rights.

 

35.       With regard to the ruling of the European Court on the Russian arrangement, we would note in passing that even if this arrangement had been found to be legal, it would not in any case have been possible to draw an analogy from it to the Israeli arrangement. Contrary to Israeli Law, the Russian arrangement included unique, concrete and explicit provisions of law that positively prohibited the return of terrorists' bodies. This arrangement was included in a law titled Federal Interment and Burial Act, Law no. 8-FZ, and a decree titled Decree no. 164 of the Government of the Russian Federation (20.3.2003). The Russian Law explicitly permitted action against bodies of persons defined as "terrorists" even in the absence of any objective reason preventing their return. It stated in no uncertain terms that their bodies would not be handed over for burial, and that their place of burial would not be divulged, as follows: "The interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed" (§4) (English translation taken from the ruling in the Sabanchiyeva case). Furthermore, the authorities' action in Russia was also anchored in an explicit decree that regulates, in precise and rigorous terms, the way that bodies should be kept and their burial arrangements. Moreover, in the petitions in the Sabanchiyeva case and the Mashkadova case, it was argued that Russia was in fact the only state beside Israel that had a clear policy, seemingly grounded in law, on holding terrorists' bodies. The Israeli government did not contest this claim in the judicial proceeding conducted before us, nor did it point to any other country in the world with a similar arrangement.

 

36.       Along with this, we would note that other than the laws of armed conflict and human rights law, history has seen peace treaties signed between countries that have referred to how dead bodies are to be handled and repatriated (e.g. the Treaty of Versailles, 1919, arts. 225-226).

 

37.       The picture that emerges from the review is that although neither international humanitarian law nor international human rights law establish a statutory prohibition on holding bodies in an armed conflict, this practice is met with reservations, and involves considerable legal difficulty. True, it is possible to imagine situations where security interest might justify a party to a conflict holding bodies for certain periods of time within the framework of an armed conflict, for example, when battle on the ground is protracted, or certain bodies are required for investigation purposes. This is particularly so when both parties to a conflict simultaneously keep bodies (although we should note that each party is severally held to comply with international law and act according thereto, and violation by one party cannot, in itself, justify violation by the opposing party). Indeed, in these exceptional cases, the temporary holding of bodies might reflect a proper balance between security interests and conflicting rights, while also being legal under international law. Still, notwithstanding the existence of possible exceptions, international law expressly instructs that the preferred option is to return the bodies. Clear, explicit rules instruct parties to armed conflicts to make every effort to return the deceased to one another. This conclusion is understood from the spirit of many legal provisions of the Geneva Conventions, the Protocols Additional to the Geneva Conventions, the various conventions on human rights, customary international law, the Red Cross commentary collections, judicial decisions by international tribunals, the professional literature on international humanitarian law and international human rights law, etc.

 

38.       As to the specific case of the State of Israel, its decision to hold terrorist bodies, as noted, is not based on international law but on domestic Israeli law. In any case, this decision also appears to raise weighty questions when examined in light of international law. The State wants to interpret reg. 133(3) of the Defence Regulations in a way that grants the Military Commander broad authority to order the burial of terrorists for negotiation purposes, whereas reg. 133(3) of the Defence Regulations does not refer at all  to relevant distinctions in international law and does not relate to it. The regulation makes no mention of the numerous obligations imposed on parties to conflicts by virtue of international law as regards the evacuation, documentation, identification, registration and handling of bodies, as well as the communication of information on bodies. In addition, the regulation does not factor in the full range of distinctions required by international law in a situation where terrorist bodies are held, including distinctions between different combat situations (routine, armed conflict, etc.); between different types of terrorists (combatants, "affiliated", civilians, etc.), and between different terrorists based on their territorial affiliation (residents of Judea and Samaria, residents of East Jerusalem, of Israel, etc.). Regulation 133(3) of the Defence Regulations does not "converse" with international law in these numerous contexts, in a manner that raises questions about the extent to which it conforms to international law. The Cabinet Decision is also silent on these numerous contexts. This fact naturally carries implications for the interpretation of reg. 133(3) of the Defence Regulations, and serves to reinforce the conclusion regarding its generality and its being a non-explicit provision of law.

 

The "Reciprocity" Claim and its Implications for the Decision

 

39.       An argument that floated in the background of the petitions—one that is detached from the interpretation, and that I believe warrants separate discussion—is the reciprocity claim. The claim is that the State of Israel is actually holding terrorist bodies because the Hamas organization is holding bodies of IDF soldiers, as well as Israeli civilians. Were it not for Hamas holding bodies of IDF soldiers, the State of Israel, too, would not have held bodies of Hamas-affiliated terrorists. There is no denying that this argument raises serious questions of principle, and certainly moral questions. One cannot ignore the strong gut feeling, also pointed out by Justice M. Cheshin in his minority opinion in the Bargaining Chips case, that a substantial, fundamental difference exists between a state of affairs where both sides to a conflict simultaneously hold bodies, and a second state of affairs where only one party to a conflict holds bodies and refuses to return them. Given the circumstances of the case, however, I do not consider it possible to lend much legal weight to the reciprocity claim, for a number of cumulative reasons.

 

40.       First and foremost, it is obvious that the reciprocity claim cannot replace the requirement for authority. The fact that Hamas holds Israeli captives and missing persons might constitute moral grounds for reciprocation, but does not replace the obligation to act on the authority of law. As pointed out, even justified administrative action can be found to be illegal in the absence of a source of authority. The authority requirement does not draw its vitality from the justification of the administrative action, but from the principle of the rule of law and from broad goals meant to limit the power of government and ensure individual liberties. The principle of the rule of law, and the authority requirement derived therefrom, are separate from the question of the morality of some concrete administrative action. These things must be distinguished. As Justice Zamir said, the principle requiring authorization in law "overrides other public interests, including interests of the first order"—and even an important security interest cannot legitimize administrative action not authorized by law—"This is the rule of law in government" (Zamir, Administrative Authority, 76). And note well that the obligation to act in compliance with a law that regulates the exercise of governmental power and its restrictions is particularly important in the fight against terrorism, where the wielding of governmental power often involves questions relating to human rights (see: Aharon Barak, The Supreme Court and the Problem of Terrorism, in Judgments of the Israel Supreme Court: Fighting Terrorism Within the Law 9 (2005); HCJ 168/91 Morcus v Minister of Defence [54], 470). As noted, the requirement of authorization in the law stands on its own. The reciprocity claim, justified and proper as it may be in moral terms, cannot legitimize the Military Commander's action in the absence of authorization in law for his action.

 

41.       Secondly, reg. 133(3) of the Defence Regulations does not stipulate any reciprocity condition. It does not establish that a necessary condition for holding bodies is for both parties to a conflict to hold bodies at the same time. The contrary is true: the authority in principle granted thereunder seems to be a broad authority that does not depend on the existence of any preconditions. The Cabinet Decision is also not explicit in this regard. While the Cabinet Decision was forward looking, at a time when Hamas held Israeli captives and missing persons, it did not clarify that it was only valid until their repatriation. Note that had there been a specific, explicit primary arrangement in Israeli Law that authorizes an administrative entity to hold terrorists' bodies for negotiation purposes, reciprocation ought to have been a primary and necessary condition. Indeed, if the purpose of the arrangement is to allow the State of Israel to negotiate with enemies for the return of its own sons, and if the State of Israel accepts (as it declared before us) that holding terrorists' bodies for negotiations should be reserved for situations involving concrete contacts for the exchange of prisoners and missing persons, it stands to reason that authority to hold bodies for negotiation purposes would be made conditional on both parties to the conflict simultaneously holding prisoners and missing persons. As noted, such a condition is absent from the Cabinet Decision and from reg. 133(3) of the Defence Regulations.

 

42.       Third, in the more general sense, one should bear in mind that the fact that the enemy acts in certain ways does not always justify similar action. As President Barak said: "This is the destiny of a democracy — it does not see all means as acceptable, and the ways of its enemies are not always open to it. A democracy must sometimes fight with one hand tied behind its back. " (the Public Committee case [49], para. 64, 844-845). In this context, as noted, even if one can envisage situations where the State of Israel would be able to hold bodies, and even if we accept the reciprocity claim in certain senses, this does not mean that the State of Israel can take every action taken by its enemies. “Reciprocity” does not necessarily mean “full reciprocity”. Indeed, even if the State of Israel sought to hold terrorists' bodies only when its enemies simultaneously held Israeli captives and missing persons, it would still be subject to internal norms that are incumbent upon it, and that it had itself chosen to abide, among them that its actions are in accordance with the law, meet the rules of proportionality, are consistent with various obligations in both domestic and international law, comply and respect constitutional balances, etc. In this sense, the assumption that the enemy's actions follow "different norms", some of them contrary to basic legal and humane norms, cannot serve as legal justification for sanctioning every action—by way of mirroring—on Israel's part as well.

 

43.       Finally, the reciprocity claim in this case ignores that the connection between the specific terrorists whose bodies are held by the State of Israel and Hamas is unclear. In this respect, the State made it clear that it did not claim that the terrorists whose bodies it holds are Hamas fighters. On the other hand, it was claimed that they are at most "affiliated" or "identified" with Hamas ideologically. Assuming even that Hamas were interested in holding negotiations on those bodies in dispute, it is obviously possible to imagine similar situations where the equation between the State of Israel and the terrorist organization would not be simple and clear-cut, and this too should be considered when examining the reciprocity claim.

 

44.       As noted, the conclusion is that the reciprocity claim cannot be accorded much weight within the judicial debate upon the petitions, and that it makes no difference to the analysis of the authority in this case.

 

The Remedy

 

45.       As explained above, Israeli Law does not grant the Military Commander authority to hold terrorists' bodies for negotiation by way of temporary burial or in any other way. As a general, non-explicit provision of law, reg. 133(3) of the Defence Regulations does not constitute such source of authority. Prospectively, the conclusion is that the Military Commander may not use his authority under the regulation to hold terrorists' bodies for negotiation. Retrospectively, the conclusion is that the burial orders that are the subject of the petitions were issued by the Military Commander unlawfully. A possible remedy in these circumstances is to declare those burial orders void, which would mean the immediate return of the terrorists' bodies to their families. However, considering the entirety of rights and interests at play, it is my opinion that if the State so wishes, it should be afforded the opportunity to formulate a full, complete legislative arrangement, in explicit, specific primary legislation that meets the relevant legal standards, and which will be intended and dedicated to treat of the issue of holding bodies for the desired purposes, and which would accord weight to the observations made in this judgment. While an outcome where the State of Israel continues to hold bodies even after it has been judicially determined that this action is done without authority is no simple matter, I believe that it is a balanced and appropriate outcome considering the totality of circumstances (on granting a remedy of the suspended voidance, see: Daphne Barak-Erez, Procedural Administrative Law, 430 (2017) (Hebrew); Yigal Marzel, Suspending a Declaration of Voidance, 9 Mishpat U'Mimshal 39 (2005) (Hebrew)). In light of the above, if my opinion be heard, my recommendation to my colleagues would be to grant the petitions, make the orders nisi issued within their framework absolute, and order the granting of a suspended declaration of voidance that would allow the State time to formulate a full legal arrangement within six months from the time of the rendering of this judgment. Should the State fail to formulate an arrangement by that time, the bodies of the terrorists whose matter was heard in the petitions shall be returned to their families. I would further recommend to my colleagues that we not issue an order for costs in this proceeding.

 

Comments on the Margins of the Decision

 

46.       Given my decision that reg. 133(3) of the Defence Regulations does not grant the Military Commander authority to hold terrorists' bodies for negotiation purposes, I need not address additional arguments raised by the Petitioners, including those made with respect to the Military Commander's exercise of his discretion and the purpose of his actions. I would note, in particular, that I have found no need to address the Petitioners' claim regarding the territorial application of the Defence Regulations. In this context, the Petitioners argued that even if reg. 133(3) of the Defence Regulations were determined to constitute a source of authority for the Military Commander's decision to hold bodies for negotiations, this authority would not have applied, in any case, to all the bodies in the petition. In their view, the authority under the Defence Regulations applies only to bodies of terrorists from Judea and Samaria, and not to bodies of terrorists from East Jerusalem. As I said, I am not required to rule on this claim, but I will note, beyond what is strictly necessary, that this claim is erroneous on its face. The Defence Regulations also apply within the State of Israel, as they constitute Mandatory legislation that predates the establishment of the State. Hence, the decision on the question of the Military Commander's authority by virtue thereof is also relevant to bodies of terrorists from East Jerusalem (see and compare: Michal Tzur (supervised by Prof. M. Kremnitzer), The Defence (Emergency) Regulations, 1945, The Israel Democracy Institute, Policy Paper No. 16, p. 11 (1999) (Hebrew); HCJ 5376/16 Abu Hdeir v. Minister of Defence [55], para. 32, per Justice E. Rubinstein); HCJ 5839/15 Sidar v. Commander of IDF Forces in the West Bank [56], para. 1, per Justice U. Vogelman).

 

47.       In debating the question of the remedy, I decided upon the remedy of a suspended declaration of voidness, in order to allow the State sufficient time to formulate a full, complete primary legislative arrangement. I would like to emphasize that, notwithstanding my decision to order that final remedy, this should not be taken as an expression of any position in regard to a decision, if such is made, to launch a legislative procedure. The decision to initiate a legislative procedure, with its possible implications, is the legislature’s to make, and it is assumed that it will exercise discretion as well as wisdom. It goes without saying that I am also not expressing any opinion on the content of any legislation that may be enacted. My only operative determination in this ruling is that reg. 133(3) of the Defence Regulations does not constitute a source of authority for the Military Commander to order terrorist bodies to be held for negotiation purposes. My judgment is based on this determination and it alone. As opposed to this, one should not read into it any other determination that might inhibit the Court from expressing positions on future legislation, including authority that may be granted by virtue of such legislation, its purposes, the discretion exercised within its framework, proportionality, etc. Of course, it can be assumed that these issues, too, might raise weighty legal questions in the future.

 

Summary

 

48.       This ruling addressed only a single question: whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the temporary burial of terrorists' bodies for the sake of holding them for negotiation purposes. As explained, reg. 133(3) of the Defence Regulations does not constitute a source of authority for the Military Commander's action. This conclusion necessarily derives from the principle of the rule of law and the principle of administrative legality. It follows from interpretative analysis of the regulation's language, which indicates that this is a general, broad regulation that cannot be deemed explicit, specific legislation. It can also be understood from the purpose of the regulation, which comprises its historical context, its inner and external logic, and the application of the rules of interpretation applied in the Israeli legal system. As explained in the decision, the Mandatory legislator, followed by the Israeli one, never envisaged a situation related to the temporary holding of terrorists' bodies for negotiation purposes, and did not seek to put in place a unique arrangement to grant authority in that regard. Moreover, the conclusion in the matter of authority is reinforced when juxtaposed with this Court's rulings in other, similar contexts of terrorists' bodies and live detainees being held as “bargaining chips”, as well as when compared to international humanitarian law as it relates to the laws of armed conflict and to international human rights law.

 

49.       In effect, my judgment can be summarized as follows: The State of Israel—as a state under the rule of law—cannot hold terrorists' bodies for negotiation purposes in the absence of explicit enabling  legislation. If the State so wishes, it must formulate a full, complete legislative arrangement specifically tailored to this subject, in explicit primary legislation that meets the legal standards of Israeli law, and corresponds with those provisions of international law that are not disputed. Since Israeli law has no such legislative arrangement, I recommend to my colleagues that we grant the petitions, make the orders nisi issued within their framework absolute, and make a suspended declaration of voidness with respect to the burial orders, so that the State can formulate a full, complete, dedicated legal arrangement within six months of the rendering of this judgment. Should the State fail to formulate a legal arrangement by that time, the bodies of the terrorists whose matter was heard in the petitions shall be returned to their families.

 

50.       Before concluding, and not unnecessarily, I would like to note that in writing my opinion, I constantly had in mind the family members of IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, and of Israeli civilians Avera Menigstu and Hisham al-Sayed, as well as the relatives of the victims of the hostile acts committed by the terrorists whose case was heard in the petitions. Truth be told, deciding these petitions has been extremely hard for me. The suffering of the Israeli prisoners and missing persons held in Hamas captivity and the pain of their family members are unbearably heavy. The human outcome is hard, especially when the State believes that holding the terrorists' bodies might help obtain a deal for their repatriation. At the same time, as judges, our job is to rule in accordance with the law and the binding legal rules. To quote President Barak in the Bargaining Chips case [48], "as important as the purpose is of the release of prisoners and missing persons, it is not sufficient – in the framework of the petition before us – to legitimize all means." (ibid, para. 24, at p. 744). As previously noted, the State of Israel cannot, as a state under the rule of law, hold bodies of terrorists for negotiation purposes without authority. It has the option to arrange the issue in law, and the hope is that—with or without regard for this—all the legal means will make it possible to bring home the Israeli captives and missing persons as soon as possible.

 

51.       All that remains for me to do is to end this judgment on the well-known words of Justice H. Cohn in the Qawasmeh case, which I also had the opportunity to quote in the past in CFH 5698/11 State of Israel v. Dirani [57]:

 

How is the fighting of the State different from the fighting of its enemies? The one fights while upholding the law, whereas the others fight while breaking the law. The moral strength and material justification of a government’s fight are entirely contingent upon upholding the laws of the State. By giving up this strength and this justification of its fight, the government serves the enemy’s objectives. The moral weapon is no less important than any other weapon ‒ and perhaps superior—and there is no moral weapon more effective than the rule of law.

 

 

 

 

Justice G. Karra:

 

I concur in the opinion of my colleague Justice Y. Danziger, and will add this: Regulation 133(3) authorizes the Military Commander to order the place of burial of any person's corpse, who will bury that corpse, and at what time it will be buried, but it cannot be understood as testifying to the existence of authority for the Military Commander to hold a corpse after its burial. Since "the limits of interpretation are the limits of language", the language of the regulation cannot be interpreted to include what is not there.

 

 

Justice N. Hendel:

 

The State of Israel has existed in a state of emergency—literally, as well from the legal standpoint—since the day of its inception. A state of emergency, as well as of war. The law of war, in all its elements and aspects, is no oxymoron, but rather a constant legal challenge imposed upon the State by circumstances. Reality, which forms the factual foundation, does not dictate an outcome one way or another. This area—the law of war—is perhaps the most difficult of  legal disciplines. It is not theory, but concrete questions that stand on the shoulders of other questions, some of which are virgin soil: life and death, defense and morality, and even defining the kind of society we are, and the kind of society we choose to be. Caution is required, as well as sensitivity and legal analysis in accordance with its rules. Deciding the issue of handling terrorists' bodies thus requires an in-depth, meticulous and rigorous legal journey through the fields of the relevant norms and considerations—upon which I shall elaborate in my opinion.

 

1.         On January 1, 2017, the Israeli government—through the Ministerial Committee on National Security Affairs—adopted a new policy on handling bodies of terrorists. According to this decision, such bodies would be returned, as a general rule, to relatives "under restricting conditions" set by the security establishment. However, two groups form an exception to this rule: Bodies of terrorists who had belonged to the Hamas terrorist organization (hereinafter: Hamas) or had committed a "particularly exceptional terrorist act", would be held by Israel by way of burial. The decision by the Ministerial Committee was based on security evaluations that suggested that holding bodies of terrorists belonging to the last two categories—and hence known to hold "value" for Hamas—"might aid" in repatriating the civilians and the bodies of fallen IDF soldiers held by the terrorist organization, and facilitate future negotiations on the matter. At the very least, holding terrorists' bodies might improve the nature and parameters of a future repatriation deal, together with the significant, related security implications. Thus, the policy adopted by the Ministerial Committee was meant to promote the safe return of Israeli civilians Avera Mengistu and Hisham a-Sayed, and the return for interment in Israel of IDF combatants Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory—while protecting the security and safety of the general public.

 

According to this policy, and by virtue of burial orders issued by the relevant Military Commanders, four bodies of terrorists were buried in the cemetery for fallen enemies in Amiad, and DNA samples were taken to allow for future identification. Two other bodies of terrorists are held by the Israel Police, with no burial orders having been issued for them as yet. On September 13, 2017, we acceded to the request of the Petitioners in HCJ 285/17 and HCJ 6524/17, and instructed the Respondents—pursuant to previous decisions—not to bury these bodies until a decision is made on the petitions.

 

2.         In their petitions, the Petitioners ask that we order the Respondents to return the bodies of their relatives, claiming that holding the bodies violates the constitutional right—of the terrorists and their family members— to dignity, constitutes collective punishment, and is contrary to international law. From the Petitioners' perspective, the Respondents' policy is unreasonable and disproportionate. Furthermore, in the absence of explicit grounding in primary legislation, it violates the principle of administrative legality and does not meet the conditions of the limitation clause. As opposed to this, the Respondents invoke reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the Defence Regulations; the regulation, verbatim, will be presented below), which authorizes the Military Commander to order the place, time and manner of burying "any person"—and thus also applies in the case of terrorists. The Respondents believe that the limited violation of the rights of the dead terrorists and their families is reasonable and proportionate, and given the circumstances—i.e., the Israeli civilians and the bodies of fallen soldiers held in Hamas hands—even consistent with the binding provisions of international law.

 

3.         In his comprehensive opinion, my colleague Justice Y. Danziger determined that refraining from delivering the terrorists' bodies to their families violates their constitutional right to dignity—since even "the most abhorrent murderer" is entitled to a dignified, proper burial—and hence adopting this measure requires "clear, specific and explicit" authorization in primary legislation. The problem being that reg. 133(3) of the Defence Regulations, on which the Respondents relied, "does not constitute a specific, explicit, primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes", while the residual powers of the government do not comprise steps that violate fundamental rights. My colleague therefore proposes to grant the petitions in the heading, and order a suspended declaration of voidness of the relevant burial orders—should the State fail to resolve the issue with suitable legislation by June 1, 2018.

 

            I accept my colleague's position that there is value to comprehensive legislative regulation of the authority to hold terrorists' bodies, while specifying the relevant considerations and criteria for exercising it, and laying down the manner and limitations for holding bodies. I am also willing to concede that the handling of terrorists' bodies might infringe the right to dignity. In this respect, even the existing international law and custom carry weight. In other words, not every instance whatsoever of handling bodies is immune to judicial review. As grave as the terrorists' activity may be, it is not their values or actions that will dictate to us the binding legal norms within our system. But even from this perspective, the conduct of Hamas and the terrorist organizations, and the prevailing security situation, are pertinent in examining the violation of the right to dignity and its magnitude. For this reason, but not only for this reason, bringing the terrorists' bodies to proper burial, even if in a different form than the one they had hoped for before setting out on their murderous rampages, considerably reduces the violation.

 

            When all is said and done, I cannot concur in the result reached by my colleague, and condition the validity of the burial orders on some future legislative arrangement. For the reasons that I shall clarify below, my position is that reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the time, place and mode of burying terrorists' bodies, and that considerations having to do with preserving public safety and security—including against a background of civilians or bodies of fallen soldiers being found in enemy hands—lie at the core of this authority. The aspiration to promote a lex ferenda, i.e., a complete, comprehensive legislative arrangement of the issue, cannot blur the nucleus of authority entrusted by the existing law to the Military Commander—reg. 133(3) of the Defence Regulations. In these circumstances, although holding the terrorists' bodies oversteps the residual authority of the Israeli government (see HCJ 11163/03 Supreme Monitoring Committee v. Prime Minister [58], para. 20, per Deputy President M. Cheshin), I have found no real substance in the Petitioners' claims as concerns the authority.

 

4.         Before I delve into the interpretation of reg. 133(3) of the Defence Regulations, we should recall that its current version was shaped in early 1948, when its scope was extended and the authority was vested in the Military Commander (sec. 2 of the Palestine (Defence) Order In Council, 1937, Official Gazette, Supplement 2, 66)). As such, the regulation and its provisions come under the aegis of the preservation of laws provision in para. 10 of Basic Law: Human Dignity and Liberty, and are not subject to the conditions of the limitation clause in sec. 8 of the Basic Law, including the requirement that the violation of rights be done "by law… or by virtue of express authorization therein".

 

            It has indeed been ruled that even in the absence of direct applicability of the limitation clause—whether because the violated rights lack constitutional status, or because their violation is not anchored in secondary legislation—"a piece  of legislation is not to be interpreted as authorizing a violation of fundamental rights unless the authorization to do so is clear, unequivocal and explicit" (HCJ 7803/06 Abu Arfa v. Minister of Interior [34], para. 52, per justice U. Vogelman (hereinafter: the Abu Arfa case); LCrimA 10141/09 Ben Haim v. State of Israel [59], para. 22, per President D. Beinisch; HCJ 6824/07 Manaa v. Tax Authority [14], para. 14, per Justice U. Vogelman (hereinafter: the Manaa case). Considering the importance of the fundamental rights, surely the legislature did not intend to authorize the executive branch to violate them, unless this is explicitly stated in law. This interpretative presumption also rests on the difficulties raised by a general authorization, be it implied or vague, which hinders the identification of the nature and boundaries of the authority, and allows for its arbitrary use (ibid.; HCJ 337/81 Mitrani v. Minister of Transport [60],  355-358).

 

            That being said, the case-law requirement for explicit authority should not be given strict, rigid, literal interpretation. On the contrary, it is a flexible requirement whose real content varies depending on "the nature of the right being violated and its underlying reasons, the relative social importance of the right, its social repercussions, the identity of the violating authority and how severely the protected right is violated in the situational context". Even when the language of the law does not clearly delineate the scope and boundaries of the authority, "It suffices that its particular purpose… makes the existence of authorization to violate the fundamental right a necessary conclusion" in order to fulfil, in the appropriate cases, the explicit-authorization requirement (HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion [61], para. 11, per President D. Beinisch).

 

            These following was stated in relation to the explicit-authorization requirement in the limitation clause, but it equally holds true for its case-law counterpart, inasmuch as:

 

Interpreting the case-law rule on clear, and explicit authorization “flexibly” rather than “literally", and adopting a “contextual” approach by which the degree of strictness in applying the explicit-authorization requirement is followed in accordance with the relative importance of the violated right, the degree of its violation, the purpose of the law and the entirety of circumstances, promotes interpretative harmony, and is also justified for substantive reasons, in that it is characterized by flexibility and lack of dogmatism, as is required in a discourse on rights, and strikes a balance between the reasons justifying the limitation of human rights only in primary legislation and contrary values of administrative effectiveness and effective maneuvering room" (the Manaa case, para. 15; the Abu Arfa case, ibid; see and compare CA 1600/08 Maximedia Outdoor Advertising v. Tel Aviv – Jaffa Municipality [62], paras. 7-8, and 12).

 

The question whether or not a given piece of legislation comprises clear, explicit authorization cannot, therefore, be resolved through exclusively literal interpretation. The interpreter must delve into the purposes of the relevant norm, and examine whether, given the overall circumstances of the matter, they attest to a legislative intent to grant the executive branch permission to infringe the fundamental rights in question.

 

5.         Against this background, I will now address the interpretation of reg. 133(3) of the Defence Regulations, which instructs as follows:

 

Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

 

As we know, "the limits of interpretation are the limits of language ", and so the first order of business is to examine the language of the relevant norm, in context, and weed out interpretations that find no support therein (the Manaa case, para. 19; Aharon Barak, Interpretation in Law, vol. 2 – Statutory Interpretation, 104 (1993) (hereinafter: Interpretation in Law) (Hebrew)). A text does not deviate from its plain meaning, and read literally, reg. 133(3) of the Defence Regulations tips toward the Respondents' position. The Regulation grants the Military Commander broad discretion, allowing him to order where and when the body of "any person" is to be "buried"—and by whom. There is nothing in the text to point to a distinction between permanent and temporary burial—since the term "burial" is used in both contexts (see, for example, secs. 3A and 4B of the Military Cemeteries Law, 5710-1950; Dorit Gad, Second Jewish Burial–“Gathering Bones”, 26-27 Yahadut Hofshit (2003) (Hebrew))—and surely the phrase "any person" does not rule out terrorists' bodies. Furthermore, as the words "by whom… the said body shall be buried" suggest, the Military Commander's authority does not come down to limiting the identity or number of those attending the funeral (a limitation discussed in HCJ 3933/92 Barakat v. GOC Central Command [26], 5-6; (hereinafter: the Barakat case), but also pertains to the identity of the burying entity—in a way that allows a departure from the norm relating to the delivery of the body to the family. The regulation thus grants the Military Commander a broad array of powers, from specifically ordering the time of burial to a more significant decision on the identity of the burier. At any rate, as my colleague also suggests, the regulation makes no direct or detailed reference to the possibility of temporary burial with negotiations taking place in the background.  For this reason, I am willing to assume, within the framework of this decision, that its language does not tip the scales in favor of the Respondents, and that the Regulation also "tolerates" a more restrictive interpretation.

 

6.         Having said that, we must move on to the second stage of the interpretative process and examine which of the proposed alternatives optimally fulfils the purpose of the legislation in both its layers (HCJ 693/91 Efrat v. Director of Population Registry [63], para. 11, per President A. Barak; (hereinafter: the Efrat case). First, we need to trace the subjective purpose that the legislature sought to advance—and which can be established, inter alia, by analyzing the social and legal background of the legislation, the explanations given for it, as well as the language and structure of the law and the interrelation among its various provisions (ibid, 13-15; Interpretation in Law, pp. 201-202).

 

            The first pertinent reference in Mandatory legislation to the issue at hand appeared in reg. 302 of the Prison Regulations, 3 Laws of Palestine  2091 (1925), which provided that after hanging prisoners sentenced to death, "the body shall hang for one hour, after which it will be taken down and handed over to the relatives for burial. Should the relatives  not desire to take charge of the body, it will be buried at  Government expense". Incidentally, it is interesting to note that this provision deviates from the law practiced in Britain at the time, under which prisoners who were executed were buried in the prisons, and not handed over to their families (see, for example, Caroline Sharples, Burying the Past? The Post-Execution History of Nazi War Criminals, in A Global History of Execution and the Criminal Corpse 249, 250-251 (Richard Ward, ed., 2015)). In any event, reg. 19C of the Emergency Regulations 1936—as amended in October 1938, under the Palestine (Defence) Order in Council, 1937, Official Gazette, Supplement 2, 825, 1095—authorized the District Commissioner to deviate from the provisions of reg. 302 on handing over the body to relatives, and to order, "Notwithstanding anything contained in any Ordinance or law… that the body of any person who has been executed at the Central Prison, Acre, or the Central Prison, Jerusalem, shall be buried in such cemetery of the community to which such prisoner belongs".

 

            This amendment of reg. 19C was preceded by another, in early 1938, wherein the coroner was authorized "not to perform an autopsy on the corpse of a person" who was "killed as a result of actions by His Royal Majesty's navy, army or air forces… for the purpose of suppressing riots" (Palestine (Defence) Order in Council, 1937, Official Gazette Supplement 2, 753, 77). The consolidation of these two provisions into one regulation, under the umbrella of emergency regulations, creates the impression that what we have here is a general arrangement on processing the bodies of persons killed or executed, against the background of hostilities with the security forces. This impression grows stronger in view of the social reality that led to the enactment of the emergency regulations—that is, the Arab revolt that took place in Palestine between 1936 and 1939, which met with a strong response from the Mandatory authorities. Scholars note that the increasing magnitude of the hostilities shifted the balance between the civil and military authorities in the country, and that by the end of 1938, the pendulum had already swung in favor of the latter, "leading to the implementation of complete military control in Palestine by October 1938" (Jacob Norris, Repression and Rebellion: Britain’s Response to the Arab Revolt in Palestine of 1936-9, 36 The Journal of Imperial and Commonwealth History 25, 29 (2008)). The arrangements relating to the handling of corpses of the fallen and of terrorists should thus be seen as an integral part of the continuous struggle of the colonial authorities against terror, in which extensive use was made of legal tools meant to broaden their powers, "as a means of specifically combating the revolt" (ibid, pp. 29-30; for a general description of the colonial fight against the locals' uprising, see also Yehoshua Porat, From Riots to Rebellion: The Palestinian Arab National Movement, 1929-1939 (1979) (Hebrew); Yigal Eyal, The First Intifada: The Suppression of the Arab Revolt by the British Army in Palestine, 1936-1939 (Hagai Porshner, ed., 1998) (Hebrew)).

 

            Let us continue to present the socio-legal historical background. A few years later—this time in the face of the intensifying Jewish struggle for independence (CrimA 6434/15 State of Israel v. Shavir [64], para. 4, per Deputy President E. Rubinstein)—the Defence (Emergency) Regulations, 1945 replaced the 1936 Regulations, and reg. 19C was reincarnated—lock, stock and barrel—in reg. 133 of the new regulations. Historians note and that the Mandatory authorities exercised this authority, and sometimes dictated the place of burial of those executed, in disregard of the family's requests and those of the deceased themselves (thus, for example, the Mandatory authorities decided to bury the three Olei Hagardom [“Those who went to the Gallows”] Eliezer Kashani, Mordechai Alkahi and Yehiel Dresner of blessed memory in Safed, even though all three expressed their wish to be buried in Rosh Pina, and despite the request of the Alkahi and Kashani families to bury their sons in their place of residence in Petah Tikva (Bruce Hoffman, Anonymous Soldiers: The Struggle for Israel 1917-1947 530 (2015); 4 Hanged in secret at Acre: Funeral at Safad, Palestine Post, April 17, 1947; Families were not told before, Palestine Post, April 17, 1947).

 

            In any case, in January 1948, after the UN partition resolution was adopted and the first shots of the War of Independence were fired, substantial changes were made to sub-sec. (3) of the new regulation, the sub-section that is our main focus: The narrow scope, limited to the burial of prisoners who had been executed, was replaced by a broad reference to "the body of any person", and the provision requiring burial of deceased persons in the cemetery of the community they belong to was dropped. What this means is that the original authority to prevent the return of the body to relatives was significantly broadened, and transferred from the District Commissioners to the Military Commander. Here too, the broader authorities granted to the Military Commander were not detached from the security context, i.e. Britain's joining the fighting that broke out between the Jews and the Arabs in November 1947 (see: Benny Morris, 1948: A History of the First Arab-Israeli War 97 (2010). Benny Morris is a history professor at Ben-Gurion University).

 

7.         Hence, the Mandatory legislator considered the Defence Regulations—including reg. 133(3)—a legislative platform intended to give the (mainly military) authorities effective powers with which to fight the terror directed at them from both sides of the Palestine divide (Tom Segev, Days of the Anemones: Palestine during the British Mandate 387 (1999) (Hebrew) [English: One Palestine Complete: Jews and Arabs Under the British Mandate (trans. Haim Watzman) (2000)). Initially, the regulation was satisfied with laying down a narrow exception to the norm relating to the return of prisoners' bodies to their families, but the authority was later expanded to apply to other bodies as well—belonging, as evidenced by the other components of reg. 133(3) of the Defence Regulations, to terrorists killed by the "forces of His Majesty", or to the fallen of these "forces". Thus, even if the historical and legal background for reg. 133(3) of the Defence Regulations does not provide a direct answer to the question before us, it suggests that the Mandatory legislator sought to authorize the Military Commander to refrain from handing over bodies to the relatives given considerations of protecting public safety and security, and be satisfied with burying them at the time and place, and in the manner he saw fit. From here, it is but a short distance to determining that considerations having to do with releasing the bodies of fallen soldiers, or live civilians, held captive by terrorist organizations lie at the heart of this purpose.

 

8.         Indeed, identifying the subjective intent of the legislator is not enough—since the objective purpose of the law is much broader, and it has been held that "a piece of legislation often has an objective purpose that the members of the legislating body never contemplated" (the Efrat case, para. 12). This purpose is of secondary importance in our case, since, as this Court noted in regard to another provision of the Defence Regulations:

 

The interpretation of the Defence Regulations in the Mandatory period, where colonial values held sway, is not the same as their interpretation in the State of Israel, where Jewish and democratic values hold sway. The Defence Regulations will therefore be interpreted based on the fundamental principles of the Israeli legal system as they evolved over the years (HCJ 6893/05 Levy v. Government of Israel [65], para. 9, per President A. Barak (hereinafter: the Levy case).

 

It is therefore necessary to examine the objective purpose of reg. 133(3) of the Defence Regulations, which consists of the concrete purpose—stemming "from the type of legislation and the nature of its arrangements"—and of the general purpose, which derives from the fundamental values of the system and from legislative arrangements "that are topically close" (Interpretation in Law, pp. 202-203; CA 8622/07 Rotman v. Ma'atz - National Roads Company of Israel Ltd., [66], para. 98).

 

9.         Analysis of the Defence Regulations shows that their main and undeniable purpose is to maintain state security, and public safety and order, while focusing on the fight against terror:

 

First and foremost are considerations of state security and public order. These are the specific purposes underlying the exercise of the authority under the Defence Regulations. These purposes are inferred from the provision of the Palestine (Defence) Order in Council, by virtue of which the Defence Regulations were enacted. The Order in Council established that the regulations were meant "… to ensure the public's safety, the protection of Palestine, the imposition of public order and the suppression of uprisings, rebellions and riots, and to maintain the supply and services necessary for the public” (sec. 6). These objectives can also  be seen on close examination of the Defence Regulations themselves (the Levy case, p. 886; see also HCJ 680/88 Schnitzer v. Chief Military Censor [67],  628).

 

In the same spirit, the Defence Regulations were described, in the Abu Safa case, as "security-military emergency legislation, which contains broad enforcement powers and diverse tools, administrative and punitive, for fighting all types of terror, including from the economic aspect" (HCJ 3037/14 Abu Safa v. Ministry of Interior [68], para. 10, (emphasis added)).

 

The Defence Regulations give broad interpretation to the purpose of maintaining state security and public safety. They do not stop at granting powers pertaining to the "narrow", direct military struggle against armed terrorist operatives, but equip the authorities with a much larger toolbox. As stated:

 

It has long been understood that the war on terrorism is not simply a matter of thwarting a terrorist just moments before he carries out his plan. It is an extensive struggle aimed at undermining the infrastructure of terrorist organizations, the resources available to them and their ongoing operations. This fight involves diverse means, among them legal ones… The offence of performing a service for a terrorist organization, like other provisions in the Defence Regulations and the Counter Terrorism Law, expresses the recognition that the fight against terrorism also involves undermining the supporting structure of terrorist organizations. The law recognizes the importance of neutralizing terrorist activity while still in the bud, as well as the need to target infrastructures and mechanisms that allow it to grow (CrimA 6434/15 State of Israel v. Shavir [64], paras. 59-60, per Justice D. Barak-Erez).   

 

In this spirit, regs. 84 and 120 of the Defence Regulations allow the Military Commander to act against the economic infrastructure driving the terror machine and confiscate property linked—itself or through its owners—to these activities (on these regulations, which are no longer in effect within the territory of the State of Israel, see HCJ 2959/17 Alshuamra v. State of Israel [69], paras. 12-23 (hereinafter: Alshuamra case). Similarly, it was determined that reg.125 of the Defence Regulations authorizes the Military Commander to declare an area closed by order for the purpose of "delimiting training grounds, setting up military installations, etc." (CA 2281/06 Even Zohar v. State of Israel [70], para. 5, per Justice A. Procaccia, and compare para. 9 per Deputy President S. Joubran in the same matter; (hereinafter: the Even Zohar case))—and not necessarily for the purpose of preventing immediate confrontation (see the Levy case, pp. 892-893).

 

Regulation 133(3), which forms an integral part of the Defence Regulations, should also be interpreted in light of this broad purpose, i.e., promoting a systematic fight against terror and its various circles of support and activity. It goes without saying that curtailing the ability of terrorist organizations to use bargaining chips in order to gain achievements constitutes an integral part of this struggle.  The ongoing war on terror takes on various forms, and must adapt itself to the enemy's innovations. Actions result in reactions, and so the chain changes. New and ugly facets of terrorist organizations are nothing new. The tactics frequently change, and cannot be ignored. One might say that there is a direct relationship between the breadth of the fight against terror and the breadth of interpretation: when the former broadens, the interpreter must draw the necessary conclusions, and give the relevant norm a contemporary interpretation that expresses its spirit and purpose. The purpose of the Defence Regulations is broad, and its practical "translation" must be adapted to the changing reality—within the bounds of authority delineated by the legislature. The purpose is thus adapted to reality and is integrated with the powers granted to the Military Commander. Ignoring the frequently changing needs misses the clear purpose of the Defence Regulations, including reg. 133(3) that is the focus of this case.

 

10.       An "offshoot" that branches out from the purpose of maintaining state security and public order is the creation of individual and environmental deterrence. This purpose is expressed in a series of authorities that the Mandatory legislator granted to the Military Commander, believing that exercising them could "deter potential terrorists from carrying out a terrorist act and take human lives"—even if they are clearly devoid of direct, tangible military value (HCJ 5290/14 Qawashmeh v. Military Commander [71], para. 21).

 

Regulation 119 of the Defence Regulations, which authorizes the Military Commander to order the forfeiture and destruction of terrorists' houses, stands out prominently in this case, since its purpose—as determined by this Court repeatedly—"is not to punish but deter" (see, for example, HCJ 4597/14 Awawdeh v. Military Commander [72], para. 19). In other words, the justification for exercising the authority to order forfeiture and destruction "lies entirely in its hoped-for impact on the environment, and more particularly the terrorist's surroundings" (HCJ 5376/16 Abu Hdeir v. Minister of Defence [73], para. 3 of my opinion), even though destruction carries no "pure" military value. A similar purpose is reflected in reg. 120 of the Defence Regulations, which authorizes the Military Commander to order the forfeiture of all the property of a person who committed  an offence against any of the regulations—even when the offences are unrelated to the property, such that the forfeiture has no "deterrent justification" (the Alshuamra case, paras. 13-15). Without making a definitive statement, it seems possible that reg. 133(3) of the Defence Regulations—which primarily affects the non-implicated surroundings of the dead terrorist—also carries a similar deterrent purpose.

 

11.       Another concrete purpose of reg. 133(3) of the Defence Regulations is to regulate the handling of enemy corpses while protecting the dignity of the dead. The regulation, which was, as noted, adopted against the background of the intensifying fighting against terrorist organizations and local militias, reflects the spirit of art. 17 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949,  which imposes a duty upon parties to a conflict to ensure honorable interment for the enemy's fallen. In other words, the legislator authorized the Military Commander to undertake the burial of these bodies, bearing in mind the possibility that at some point in time—or, as stated in art. 17: "as soon as circumstances permit, and at latest at the end of hostilities"—the bodies would be exhumed and handed over to the family members. Naturally, such burial is of a temporary character; it is meant to ensure that the deceased rests in peace until the time comes—when fighting ends, or when an exchange arrangements are concluded (as part of which, as the State has declared, hundreds of terrorists' bodies have been returned in the past decades).

 

            This purpose of the regulation is not only reflected in the longstanding practice of holding the bodies of enemy fallen and terrorists— although this type of custom carries significant interpretative weight in itself (see and compare: HCJ 3132/15 Yesh Atid v. Prime Minister [74], para. 2 of my opinion ). An examination of sec. 76 of the Counter Terrorism Law, 5776-2016, which revoked many of the provisions of the Defence Regulations, suggests that the legislature chose to leave reg. 133(3) of the Regulations unchanged. This stems, as evidenced by the explanatory notes to the amending bill Defence (Emergency) Regulations (Revocation of Regulations), 5773-2013,  from perceiving reg. 133(3) as a vital, irreplaceable source of authority "for the burial of enemy dead" (the details of the authority are regulated in various secondary sources, such as General Staff Order 38.0109 "Enemy Army's Dead – Procedure on Identification, Disposal of Effects, Reporting and Burial in Times of Emergency"). Beyond the security considerations in their "narrow sense", the regulation therefore seeks to ensure proper temporary burial of enemy dead, until their possible return to their countries and families. Note parenthetically that the legislature's choice to refrain from revoking the regulation is particularly significant in view of the customary practice of burying enemy dead in dedicated cemeteries, and in light of the ruling that sanctioned the holding of terrorists' bodies for considerations relating to negotiation with terrorist organizations (HCJ 6807/94 Abbas v. State of Israel [37]).

 

12.       This last purpose "bridges" the security purposes of reg. 133(3) of the Defence Regulations and the general purpose attributed to each piece of legislation, namely the protection of fundamental rights. It is true that the preservation-of-laws provision maintains the validity of the Defence Regulations, including reg. 133(3), but:

 

[that] their interpretation, especially when it comes to the objective sense, must be done in the spirit of the value-based normative declaration made in the Basic Law, while sometimes re-balancing the values underlying the piece of legislation, in the spirit of the renewed constitutional balance (the Even Zohar case, para. 5, per Deputy President S. Joubran).

 

In this sense—interpretation versus direct attack—the fundamental rights are back up for debate. Burying the dead as per their wishes and those of their family forms an integral part of the fundamental right to dignity—which in this context comprises two heads: the dignity of the dead and that of their family. As President A. Barak stated at the time, "human dignity is not only a person's dignity in life. It is also a person's dignity after death, and also the dignity of that person's beloved, who cherish their memory in their hearts. This dignity is reflected, inter alia, in the very erection of a gravestone, in visits to the cemetery on memorial days and public ceremonies, and in tending the grave" (CA 294/91 Jerusalem Burial Society v. Kestenbaum [75], 523).

 

The introduction of Basic Law: Human Dignity and Freedom gave the principle of "the dignity of the dead" constitutional status, since "'the dignity of dead people derives from that of living people'… The dignity of the living person is violated when he is no longer guaranteed in life proper protection of his dignity when he is no longer alive" (HCJ 52/06 Al-Aqsa Association for the Development of the Assets of the Muslim Waqf in the Land of Israel v. Simon Wiesenthal Center Museum Ltd. [76] para. 135, per Justice Procaccia (hereinafter: the Al Aqsa case). Beside this aspect, albeit lower on the normative scale (CA 7918/15 Doe v. Friedman [77], para. 4 (hereinafter: the Friedman case)—stands, as noted, the right of the family members to determine how the dead and his memory are to be treated. The assumption is that "a violation of his memory and dignity is bound and intertwined with a violation of their dignity" (the Al Aqsa case, para. 139). Public policy, and the value attached by society to the care of its dead, reveal other facets in the principle of the "dignity of the dead" (ibid, para. 151)—and in some cases might even override the "private" rights of the dead and their families, dictating that their choices about the way to handle the corpse should be ignored (HCJ 6167/09 Avni v. State of Israel [78]; but see CA 1835/11 Avni v. State of Israel [79],  and the Friedman case).

 

13.       In my view, the "dignity of the dead", as such, stands on its own legs, and is higher up in normative status than "the dignity of the dead person's family". The more challenging question what is the basis for the principle of the "dignity of the dead": is it a derivative of human dignity—i.e., whether, just as human dignity is an individual "asset", so is the dignity of the dead, regardless of the surroundings and those surviving the deceased; or is protecting the dignity of the dead meant to send a clear message to the living, as a promise that their dignity will be preserved after their death. As noted above, the answer seems to comprise both possibilities.

 

            In this regard, it is interesting to turn to Jewish law, which also comprises several levels of the right of the dead to dignity. One aspect is inherent in the halakhic injunction that it is "a religious duty to carry out the wishes of the deceased" (TB Gittin 14b). Commentators see the duty to honor the last wishes of the deceased and execute their will—including in matters unrelated to the distribution of the estate—as an expression of human dignity (Rabbi Osher Weiss, Minchas Osher - Bereshit, Parashat Vayekhi, Siman 66, 435-439 (2002) (Hebrew) in regard to Jacob's final charge in his blessings to his sons, and on his place of burial ["Bury me not, I pray thee, in Egypt"]). Another aspect is reflected in the biblical instruction not to leave an executed person’s body overnight, "for an impaled body is an affront to God" (Deut. 21:23). Rashi (Rabbi Shlomo Yitzchaki, one of the most illustrious Bible and Talmud commentators, who lived in France in the early part of the second millennium CE) interpreted this verse in a way that connects human dignity to God's dignity: "It is an affront to the King in Whose image Man is created", hence the dignity of God requires the dignified burial of man, even if one who had sinned and was executed. Accordingly, it was determined that "whosoever lets his dead lie overnight transgresses a negative commandment", unless he is "kept overnight for the sake of his honor, to fetch him a coffin or a shroud" (mSanhedrin 6, 7). And note that the Talmud (TB Gittin 61a) says that the "dead of the heathen are buried along with the dead of Israel", which means that the commandment of burial applies to Jews and non-Jews alike. (See the ruling by the late Rabbi Shlomo Goren, who served for many years as the IDF's Chief Rabbi, and as the Chief Rabbi for Israel, with regard to the burial of non-Jewish soldiers in military cemeteries (Trumat Hagoren, vol. II,  Siman 79 (2012) (Hebrew); Beoz Uvetaatzumot: An Autobiography, 152-153 (2013) (Hebrew)).

 

14.       Returning to Israeli Law, the right of the deceased and the deceased's family to dignity is broad in scope. It spans issues such as "tending the grave" or choosing the form and content of the inscription on the garvestone (see also HCJFH 3299/93 Wechselbaum v. Minister of Defence [80]). The duty to hand over the dead person's body to the relatives for burial derives therefrom.

 

            Indeed, in analyzing reg. 133(3), one cannot ignore that the dignity of the dead also applies to the burial of terrorists who had committed serious killing rampages. However, from a human-dignity perspective, and in the spirit of the Jewish law position—as shall be presented below—bringing the dead to proper burial expresses the values of the State of Israel as a Jewish and democratic state. These values are not diminished by the deceased's abject acts, nor do they distinguish between friend and foe, Jew and gentile. It is worth noting that international law, too—e.g., art. 17 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, mentioned above (para. 10)—attaches great importance to burying the  dead, even though they had fought in the enemy's ranks prior to their death. According to the ruling of the late Rabbi Shaul Yisraeli (the Israel Prize laureate for Judaic Studies, head of the Merkaz HaRav Yeshiva and member of the Chief Rabbinate Council, who died in 1995), Jewish Law attributes great weight to the provisions of international law as regards the law of war:

 

And therefore, one has to see the agreement of the nations that war is one of the legal means, as long as the warring nations observe the accepted custom among nations with regard to war… and from now we will say that the prevailing law between countries also stems from agreement between the people of those countries, and although it concerns matters of life and death, their agreement is valid. And therein lies the foundation of the legality of war (Amud Hayemini, Part 16, Chapter 5 (1992)).

 

The Halachic term Dina d'malkhuta dina [the law of the land is law] thus also applies in the realm of relations between the state and the international community, and imposes upon the State of Israel a duty to act in compliance with the norms anchored in the law of war, including paying last respects to enemy dead.

 

            Beyond the weight that Jewish law accords to the provisions of international law in this context, Jewish law has its own deep, independent, ancient roots in regard to the duty to bury enemy dead. Thus, for example, we are told that after the Israelites returning to their land defeated the Canaanite kings who fought them, Joshua ordered the burial of the enemy's dead that very day (Joshua 8:29; Joshua 10:27). The book of Ezekiel, too, says (39:11) with respect to the Gog and Magog war to be waged at the end of the days, "And it shall come to pass in that day, that I will give unto Gog a place there of graves… and there shall they bury Gog and all his multitude: and they shall call it The valley of Hamongog". Based on the precedent set by Joshua, Nachmanides ruled that the general duty to bury the dead also extends to fallen enemies. Rabbi Shlomo Goren, who, as we said, served as the first IDF Chief Rabbi, wrote this on the subject:

 

During my service in the IDF, we set up special burial units whose role was to see to the identification and burial of fallen enemies in wartime. This is consistent with what we said at the outset, that the words of  Scripture, "for in the image of God made he man" (Genesis 9:6), hold true for any human, with no distinction between nations and races (Meshiv Milchama, vol. I, 40 (2^nd ed., 1994) (Hebrew)).

 

We shall end with the responsum of Rabbi Nathan Ortner, who served as the Rabbi of Lod at the time, to a question put to him by an IDF soldier during the 1982 Lebanon War. That soldier said that his company had hit a Syrian tank and killed the soldiers in it, and wanted to know whether he was under religious obligation to bury the Syrians who had fought the IDF soldiers "and wanted to destroy us". After an extensive discussion, the Rabbi determined, with reference to Nachmanides's position presented above, that various nuances differentiated between the existing halakhic approaches—but that all of them recognized the duty to bury fallen enemies. Whether the duty originated in the Bible or with the rabbis, the rule is that the enemy's fallen must be buried, certainly when their bodies lie within the Land of Israel. (Nathan Ortner, Burying Enemy Dead, 4 Techumin 97 (1983) (Hebrew); see also Shlomo Brody's article on burying the body of the terrorist who staged the 2013 attack at the Boston marathon, Shlomo Brody, Even Criminals Rest in Peace, Tablet (May 9, 2013)). 

 

            Thus, Israeli Law, international law and Jewish Law have stated their cases. What emerges is that the general purpose of reg. 133(3) of the Defence Regulations strives to minimize the violation of the dignity of the terrorist and his relatives, thus seeking to restrict the authority of the Military Commander to order the burial of the body as he sees fit in terms of the place and conditions of burial.

 

15.       Another general purpose derived from the State's fundamental values is the value of "redemption of captives". Whether this is an integral component of "state security" or not, it is hard to question the significance accorded to this value within Jewish tradition and within the Israeli ethos. As aptly described by Deputy President M. Cheshin (even if his interpretative position remained the minority opinion in the Does case [48]):

 

The commandment of redemption of captives—a commandment of the utmost order—was instituted for good reason, since all of Israel (and for our purposes not only Israel) are responsible for one another. An army's strength lies in the brotherhood of its combatants, and this brotherhood is monolithic when battle comes and a combatant falls captive in enemy hands. As in the oath of the Three Musketeers, the one that Alexandre Dumas put in their mouth, "Tous pour un, un pour tous", a combatant will fight knowing that he is not alone, and that his friends will come to his rescue when trouble arrives. We are ordered and we are adamant not to abandon an injured person in the field and, as with an injured person, we will not rest until the release of our captives from their captivity. Combatants are akin to mountain climbers tied to each other by rope and fate, and a climber whose grip has failed and whose body is hurled into the abyss will be saved by his comrades (p. 747).

 

Indeed, as Justice I. Englard noted at the time (HCJ 794/98 Obeid v. Minister of Defence [81], 776-777):

 

It has been held as a matter of halakha in Shulchan Aruch, Yoreh De'ah, 252:1 that “There is no greater commandment than the redemption of captives,” and that:

”Whosoever ignores the redemption of captives transgresses against thou shalt not harden thine heart (Deut. 15:7), and nor [shalt thou] shut thine hand (Deut. 15:7), and neither shalt thou stand against the blood of thy neighbor (Lev. 19:16) and [the other] shall not rule with rigor over him in thy sight (Lev. 25:53) and neglects the commandment of thou shalt open thine hand wide unto him (Deut. 15:8), and the commandment of that thy brother may live with thee (Lev. 25:36) and thou shalt love thy neighbor as thyself (Lev. 19:18) and deliver them that are drawn unto death (Proverbs 24:11), and many such things (ibid., sec. 2).

It has also been ruled that “To delay the redemption of captives by even a moment, where it can be expedited, is akin to spilling blood” (ibid., sec. 3).

 

16.       Jewish law attaches particular importance to the "redemption of captives" in the sense of bringing warriors to burial, beyond the general value of preserving "people's dignity", which I have pointed out above. Thus, for example, Rabbi Shlomo Zalman Auerbach, one of the greatest decisors of Jewish Law in the 20^th century, determined that even if  saving a life overrides the whole of the Torah—and hence soldiers should seemingly not be put at risk in a mission to extract fallen soldiers—"the blow to the morale of soldiers who see that if they fall, they would lie by the wayside with no one to care for them, is an important factor in the fighting spirit and thus constitutes saving a life" (Yehuda Zoldan, Shevut Yehudah ṿe-Yiśraʼel: Erets Yiśraʼel -- Gush Ḳaṭif, Manhigut ṿe-Tsava, Tsibur ṿe-hHevrah, Chap. 21(B)(4) (Eyal Fishler, ed., 2007)(Hebrew)). On a different, yet not unrelated issue, Rabbi Shlomo Goren ruled that the Sabbath may be violated in order to evacuate soldiers' bodies from battlefield, since "leaving fallen combatants on battlefield undermines combatants' morale" and "considering the particular emotional sensitivity we have toward our fallen sons" (Rabbi Re'em Ha'Cohen, Responsa Badei HaAron: Answers in Current Matters, part 5 (2013) (Hebrew)). In interpreting reg. 133(3) of the Defence Regulations as regards the burial of the dead and conducting negotiations for the redemption of captives and fallen individuals, we must therefore also consider these essential Jewish and Israeli values.

 

17.       The above suggests that a certain conflict arises among the various purposes of reg. 133(3) of the Defence Regulations, and hence one must proceed to the third and final stage of the interpretative process—distilling the ultimate purpose of the regulation after balancing the conflicting purposes, while keeping within the bounds of the language. In this stage, "account shall be taken, inter alia, of the relative importance of the violated right, the extent of its violation and the overall circumstances of the case" (the Manaa case [14], para. 47).

 

            As noted, burial of fallen enemies—terrorists or regular soldiers—by the Military Commander, instead of handing them over to their relatives, violates the right of the dead and their relatives to dignity. However, we should bear in mind that the authority granted to the Military Commander incorporates protection of the core of this right. It instructs him to bring the bodies to proper burial, and does not authorize him to hold them under inappropriate conditions. Furthermore, the burial of the bodies in Israel as a tool for facilitating negotiations for the repatriation of civilians and fallen soldiers held in enemy hands is temporary in nature. This is not, therefore, a question of denying the murderers a family burial plot, but rather delaying its establishment until the relevant security considerations have dissipated (whether because negotiations have ripened, or for other reasons).

 

            As opposed to this limited violation stand considerations that lie at the core of the purposes underlying reg. 133(3) of the Defence Regulations—namely, protecting state security and public safety from the threat of terrorism. Returning the civilians held in Hamas captivity, Avera Menigstu and Hisham al-Sayed, and bringing back the bodies of fallen IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory  for burial in Israel, themselves fall within the compass of these purposes. No less important, holding the bodies is significant due to its potential effect on the results of future negotiations—results that might have far-reaching implications for the security of the Israeli public at large (see, for example, the words of Justice E. E. Levy in HCJ 914/04 Victims of Arab Terror International v. Prime Minister [4]; HCJ 6063/08 Shachar v. Government of Israel [82]).

 

            The proper balance between these purposes thus makes it clear that reg. 133(3) of the Defence Regulations seeks to authorize the Military Commander to regulate the proper burial of fallen enemies—be they terrorists or regular soldiers—when considerations of state security and public safety preclude their delivery to relatives. We would emphasize that the authority granted by the regulation is not restricted to situations involving some practical obstacle to handing over the corpses. The regulation does indeed seek to prevent the desecration of enemy bodies, but its security dimension outweighs the humanitarian one. The legislator wished to grant the Military Commander authority to weigh a large array of security considerations and decide the burial issue based on these considerations, despite the limited violation of the dignity of the dead and their relatives. Thus, for example, President A. Barak ruled in the Barakat case (pp. 5-6) that the Military Commander is authorized to order the date and manner of burial of "a person whose death was security related"—even if not within the framework of a violent confrontation with the security forces—if he believed that this was necessary in order to prevent an incendiary outburst of emotions and disturbance of public order:

 

The Military Commander has the authority to order that the funeral of a person whose death was security related will take place at night, with the participation of family members only. This authority originates in the general powers of the Military Commander to maintain order and security in the Territory. It is also anchored in the provisions of reg. 133(3) of the Defence (Emergency) Regulations, 1945.

 

Even more important to our case is the court ruling in the Abbas case [37], where President M. Shamgar determined that there had been no flaw in the discretion exercised by the Military Commander when he made the return of the body of a Hamas terrorist conditional upon revealing the burial spot of soldier Ilan Saadon of blessed memory, who was murdered by the organization's terrorists. Reasonableness "requires that an authority weigh all the relevant considerations deriving from the purpose of the law, and only them, and grant each one its appropriate weight." (HCJ 3132/15 Yesh Atid v. Prime Minister [74], para. 7 of my opinion )).  Hence, in the Abbas case, the Military Commander's authority to weigh considerations of the kind that lie at the heart of these proceedings was recognized.

 

            Thus, even if these things are not explicitly written in reg. 133(3) of the Defence Regulations, and certainly not in detail, purposive interpretation of the regulation makes it clear that the Military Commander is authorized to order the temporary burial of enemy dead for considerations of security, while showing respect to the dead. Indeed, contrary to the matter debated in the Jabareen [42], the Military Commander does not seek to rely on a general authorization to maintain order that makes no concrete reference to the possibility of preventing—or restricting—burial. What we have here is a dedicated provision regarding burial, in which case there is nothing to prevent us from resorting to interpretation in order to appraise its full scope (see and compare HCJ 10203/03 Hamifkad Haleumi v. Attorney General [83], paras. 30-33 per President M. Naor; HCJ 5100/94 Public Committee against Torture [17], 835-839).

 

18.       Before concluding the discussion on the question of authority, I will briefly address several issues. One concerns the primary arrangements rule, which states that "in matters falling within the framework of ‘primary arrangements', an administrative authority may only act with the clear authorization from the legislature" (Yoav Dotan, Primary Arrangements and the New Legality Principle, 42 Mishpatim 379, 411 (2012) (Hebrew)). In our case, the legislator was the one to outline the basic policy, determining that the Military Commander would be able to order—based on security considerations—the place, time and manner of burial for enemy dead. In the absence of complexity or extraordinary social disagreements, the implementation of the policy in the cases before us—the burial of terrorists' bodies, for security considerations relating to negotiations for the return of abductees and fallen soldiers—cannot therefore be seen as a primary arrangement (see and compare the Abu Arfa case [34], paras. 57-63 per Justice U. Vogelman; for general comments on the difficulty of identifying primary arrangements, see, for example, HCJ 4491/13 Academic Center for Law and Business v. State of Israel [84] para. 19, per President A. Grunis). In any case, in view of the said explicit authorization arising from the purpose of reg. 133(3) of the Defence Regulations and its language, the primary arrangements rule—even if assumed relevant to our case—cannot influence the outcome (ibid, para. 21; the Manaa case [14], paras. 14-15). I would also add, beyond what is required, that the constitutional layer that some attribute to this rule (ibid, paras. 22-25) has no bearing on the status of reg. 133(3) of the Defence Regulations, which comes under the aegis of the preservation of laws provision.

 

19.       Another issue has to do with the possible comparison with the "bargaining chips" case, in which this Court gave sec. 2 of the Emergency Powers (Detention) Law, 5739-1979, a restrictive interpretation, determining that it did not authorize the Minister of Defence to order the detention of a person who poses no danger—even if this might facilitate negotiations for the release of captives (the Does case [48]). I will say, at the outset, as my friend, Justice Y. Danziger also noted (in para. 25 of his opinion), that comparing the force of the injury to the dignity and freedom of an individual held in custody with that involved in burying a terrorist in a way that does not suit his wishes, poses a difficulty. Since the interpretation of the norm in question is largely influenced by the nature of the right being violated and the degree to which it is violated, this difference carries an interpretative significance that cannot be ignored. Furthermore, the restrictive interpretation preferred in the Does case is anchored in the purposes of the Emergency Powers (Detention) Law, reflecting an essential distinction between the detention of a person who poses a threat to state security and the detention of another who does not, himself, pose any threat. On the other hand, reg. 133(3) of the Defence Regulations—which, by its very nature, focuses on environmental security considerations, since the dead no longer pose any danger—does not provide any basis for a random distinction between temporary burial and permanent burial, or between burying the soldiers of the enemy's regular army and burying terrorists. The desire to expand the protection of a dead person's dignity has merit, but cannot serve as a basis for an arbitrary outcome that makes random distinctions between different situations—and in fact requires the legislature to pedantically specify every scenario that the Military Commander might encounter, even if it even if it is not substantively unique. One must keep in mind, as the majority justices in the Even Zohar case emphasized:

 

The status of the right to property as a constitutional right casts interpretative "rays of light"  toward the old legislation preceding the Basic Law, including the Defence Regulations enacted by the Mandatory legislator in 1945. However, the effect of those interpretative "rays of light" is limited and confined to the margins of the old legal provision, and they do not have the power to turn it on its head and change its deep essence (para. 10, per Justice A. Procaccia [emphasis added]; see and compare paras. 5 and 10 per Deputy President S. Joubran).

 

In the absence of purposive anchoring of the distinction between permanent and temporary burial, or between security considerations relating to disturbances during burial ceremonies and ones relating to the repatriation of civilians held by the enemy, the substance of reg. 133(3) of the Defence Regulations cannot be changed, despite the change that has taken place in the status of the "dignity of the dead".

 

20.       I will conclude the discussion on the question of authority by joining the result arrived at by my colleague Justice Y. Danziger, that "neither international humanitarian law nor international human rights law establish a statutory prohibition on holding bodies in an armed conflict," (para. 37 of his opinion)—certainly when required for a specific, real security need. This being the case, and considering the applicability of the Defence Regulations within both the State of Israel and the Territory (see, for example, HCJ 358/88 Association of Civil Rights in Israel v. Central District Commander [9], 532-533), there is nothing to support the distinction between bodies of terrorists who were residents of the Territory or residents of Israel—and the authority of the Military Commander extends to all of them.

 

            I shall only note that the rulings of the European Court of Human Rights mentioned by my colleague (Maskhadova v. Russia [91]; Sabanchiyeva v. Russia [90]) reinforce this conclusion, at least as concerns bodies of terrorists who were residents of Israel. The said rulings determined that the Russian authorities' decision not to return bodies of terrorist to their families disproportionately violated the right to privacy and family life (anchored in sec. 8 of the European Convention on Human Rights ( ECHR)). However, the Court's reasoning actually highlights the substantial difference between the Russian policy, which was rejected, and reg. 133(3) of the Defence Regulations, which we are now debating. First, in discussing the arguments made by the family members, the European Court noted (ibid, §138) that the Russian arrangement was particularly harmful:

 

In that it completely precluded them from any participation in the relevant funeral ceremonies and involved a ban on the disclosure of the location of the grave, thus permanently cutting the links between the applicants and the location of the deceased’s remains.

 

That is, the violation of rights is compounded, since the decision of the Russian authorities completely and irreversibly severed the link between the family members and the graves of their loved ones, excluding the families from the funeral ceremonies and withholding the location of the grave from them. These characteristics are clearly irrelevant to Israeli Law, which does not rule out the family's participation in the burial, permits the disclosure of the burial location, and certainly does not completely sever the tie between the family and its beloved deceased. Moreover, we should  recall that the burials in our case are temporary in nature, such that the terrorists' bodies will be returned to the relatives in the future, whether as part of an exchange arrangement or after such an arrangement will no longer be on the agenda.

 

            The ECtHR rulings, whose result was based on the sweeping, disproportionate nature of the Russian arrangement, also demonstrate the importance of the distinction between authority and discretion, showing that the question of authority is one thing (as it was indeed found to be in the Russian context) and the question of discretion is another. Furthermore, they suggest that the arrangement under reg. 133(3) of the Defence Regulations meets the tests of reasonableness and proportionality. As the European Court emphasized (ibid, § 144 146; see also paras. 233-238 in the Mashkhadova case) –  

 

The relevant official did not take the decision using a case-by-case approach and included no analysis which would take into account the individual circumstances of each of the deceased and those of their family members […] that was so because the applicable law treated all these questions as irrelevant, the decision of 15 May 2006 being a purely automatic measure […] Having regard to the automatic nature of the measure, the authorities’ failure to give due consideration to the principle of proportionality, the Court finds that the measure in question did not strike a fair balance between the applicants’ right to the protection of private and family life, on the one hand, and the legitimate aims of public safety, prevention of disorder and the protection of the rights and freedoms of others on the other.

 

In other words, the disproportionality of the decisions by the Russian authorities stems from the sweeping nature of the domestic legislation, which entirely rules out the return of terrorists' bodies to their families, automatically and without regard for the concrete circumstances,  and even denies them "some kind of opportunity for paying their last respects to the deceased person" (ibid, § 143). Expressio unius est exclusio alterius: there is nothing inherently wrong about the authorities burying terrorists' bodies instead of handing them over the relatives, as long as the authority is exercised on a case-by-case and proportional basis, while examining the overall considerations in the matter. As noted, the policy adopted by the Ministerial Committee on National Security Affairs, and the concrete decisions of the Military Commander are based on a case-by-case examination of the terrorist's identity and the circumstances of the event, and do not inherently rule out the family's participation in the burial ceremony. The rule is accompanied by an exception – an exception accompanied by case-by-case examination. This being the case, and in complete contrast to the Russian arrangement, these are proportional decisions in which there is no cause to intervene.

 

21.       We thus find that the Military Commander is authorized to order the place, time and manner of burying the bodies of fallen enemies—a burial that is often temporary in nature—when security considerations so dictate. Obviously, in exercising his discretion, the Military Commander must strike a balance between these considerations and the right to dignity of the dead and their family. However, as clarified with regard to other components of the Defence Regulations, authority is one thing and discretion is another (HCJ 1125/16 Mari v. Commander Military Forces in the West Bank [85], para. 20 per Justice M. Mazuz); HCJ 7040/15 Hamed v. Military Commander in the West Bank [86], para. 23 [hereinafter: the Hamed case]; the Alshuamra case, para. 17), and the limitations on how discretion is to be exercised do not blur the limits of the authority.

 

22.       Having reached the conclusion that the Military Commander is authorized to order the burial of terrorists' bodies for security considerations related to negotiating the return of civilians and fallen soldiers, we must now examine whether the concrete decisions in the matter of the Petitioners before us, with the general policy underlying them, meet the test of reasonableness and proportionality.

 

            I believe that the exercise of authority by the Military Commander, in accordance with the Ministerial Committee's policy, does not overstep the limits of reasonableness—whose bounds can be gauged, at least in the context of the violation of fundamental rights, using the proportionality tests as well (for a discussion on the relationship between reasonableness and proportionality (see HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank [87], para. 118 per Deputy President S. Joubran, and the sources cited there). In any case, there is a difference between the reasonableness test and the proportionality test, and between the proportionality test in general and the proportionality test under sec. 8 of Basic Law: Human Dignity and Liberty). Thus, the material presented by the Respondents, both in their pleadings and in the course of the hearing held ex parte, suggests that the burial policy is based on assessments by security agencies regarding its possible contribution to facilitating negotiations for the return of the civilians and the bodies of fallen IDF soldiers held by Hamas. The Ministerial Committee reached its decision following several discussions, in which it was presented with the assessments of the Israel Security Agency and the Coordinator for Prisoners and Missing Persons in the Prime Minister's Office, and heard the positions of the National Security Council and the IDF. These assessments suggest that the burial in Israel of "Hamas affiliated" terrorists, or terrorists who have committed "a particularly exceptional terrorist incident" of clear symbolic significance, would help further negotiations for the return of civilians Avera Mengistu and Hisham a-Sayed, and the bodies of fallen IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory,  even if the contacts for an exchange agreement have yet to reach an advanced stage. The Respondents also noted that "the political echelon holds, and will hold, periodic evaluations of the situation on this issue"—as required due to the violation of the dignity of the dead and their relatives (compare with the Hamed case, para. 27).

 

            The concrete decisions that are the subject matter of the petitions before us are also based on an appropriate factual foundation regarding the organizational affiliation of the terrorists, the "symbolism" of the terrorist event in which they died—from the perspective of the terrorist organizations—or both. Thus, Musbah Abu Sabih, the terrorist who murdered a Border Police officer and an Israeli civilian in October 2016, is identified with the Hamas organization (HCJ 285/17), like the sons of Petitioners 2 and 3 in HCJ 8503/16 (the first, who was involved in an attempted terrorist attack in July 2016, and the other, who is among those who murdered Rabbi Michael Mark of blessed memory in the same month), and the son of Petitioner 7 in HCJ 4466/16 (who carried out a suicide bombing in Jerusalem in April 2016). As for the body of Petitioner 4's son in HCJ 8503/16, it has been clarified that it is being delayed due to the dire circumstances of the terrorist attack he committed—the murder of the girl Hallel Yaffa Ariel of blessed memory in her sleep, in June 2016—and the "standing" this terrorist had gained among the terrorist organizations. Finally, the decision in the matter of terrorist Fadi Qunbar (HCJ 6524/17), who murdered four soldiers in a vehicle-ramming terrorist attack committed in January 2017, rests on the dire circumstances of the attack and on Hamas claiming responsibility for it. As noted, according to the assessments of the security establishment, Hamas attaches greater importance to the bodies of its people, or to bodies of terrorists who committed particularly severe terrorist acts—and so holding these bodies effectively promotes negotiations for the return of the civilians and the bodies of the fallen soldiers held by the organization.

 

            In these circumstances, there is no real doubt that the terrorists' bodies are delayed for a proper purpose—facilitating the repatriation of the civilians and fallen IDF soldiers held by Hamas, and influencing the negotiation in the matter in such a way as to minimize harm to the state's security and its citizens' safety—and not as an arbitrary punitive measure.

 

23.       Moreover, the factual foundation presented to us suffices to show the reasonableness of the measures that the Military Commander adopted—or intends to adopt—in accordance with the policy of the Ministerial Committee, in order to further the said purpose. However, the link between the measures and the purpose might weaken, even considerably, as the circumstances change. As noted, the bodies with which the petitions before us are concerned have been held by the State of Israel for quite a while – as long as 20 months (HCJ 4466/16). Indeed, the security considerations underlying the Ministerial Committee's policy and the Military Commander's decisions dictate that no rigid "expiry date" be set whereupon the Respondents would have to return the terrorists' bodies to their families. Furthermore, past experience teaches us that Rome was not built in a day, nor the bridge to an arrangement, and that it may take more than a year for deals to mature for the exchange of prisoners or bodies of fallen individuals (see, for example, HCJ 7523/11 Almagor Terror Victims Association v. Prime Minister [88], and HCJ 9446/09 Karman v. Prime Minister [89], regarding the repatriation of Israeli soldier Gilad Shalit). At the same time, clearly one cannot condone the unlimited holding of terrorists' bodies, and the competent authorities must frequently review the changing circumstances, both relative to the general policy (i.e., the "concreteness" of a possible exchange deal), and relative to the "value" of keeping specific terrorists (i.e., their current importance in Hamas' eyes). Thus, without establishing a definite timeframe, it is possible to determine that, at this stage, the measures taken by the Military Commander in order to further the proper purpose of the policy underlying his actions fall within the bounds of reasonableness—subject to renewed periodical examination of the issue, as the Respondents have undertaken to do.

 

            In view of the security establishment's evaluation of the possible contribution of the policy in question to the security (and moral) interests involved in the repatriation of the civilians and fallen IDF soldiers, no real alternative has been presented to this policy and its implementation in the cases before us, with minimal violation of the dignity of the dead.

 

            It should be emphasized that the decision of the Ministerial Committee on National Security Affairs instructs that terrorists' bodies be returned to their family members, except in relatively rare situations. Reality also testifies to this: The large majority of terrorists killed in recent years during terrorist attacks have been returned to their families, whereas the petitions before us relate to only six bodies. In other words, the Respondents have avoided adopting a comprehensive, deleterious policy of holding terrorists' bodies, and have sufficed with an individual arrangement that attributes weight to the organizational affiliation of each terrorist and the nature of terrorist attack committed. Moreover, the Ministerial Committee and the Military Commander have ordered the burial of the relevant bodies—as opposed to holding them in some other manner that would be less respectful of the dead.

 

            Incidentally, and to complete the Jewish Law perspective, we should note a ruling made during the War of Independence. The first Sephardi Chief Rabbi of the State of Israel, Rabbi Uziel, addressed a situation where, in the midst of war and due to the constraints of the hour, a soldier was buried in the Ayelet Hashachar kibbutz, whereas his family and center of life were in Tel Aviv. It was ruled that, under the circumstances, this burial could be considered temporary, and the body could be transferred to the Nachalat Yitzhak cemetery (Ben Zion Meir Hai Uziel, Pisqei Uziel: BiShe'elot HaZman, 36 (1973) (Hebrew)). Despite the salient and clear differences between this case and ours, this serves to reinforce the obvious. A temporary grave fulfils the requirement, be it even preliminary, of the duty to bury the dead. Such is the case even if it causes a violation to the dignity of the dead and his family that justifies the transfer of the body at a later stage.

 

24.       Finally, the Military Commander's decisions also meet the cost-benefit test. As I noted above, we are concerned with decisions that  present a relatively minor violation of the right of the dead and their families to dignity, and not to the core of the right. What we are concerned with is essentially temporary burial that does not sever the link between the terrorists' families and their dead, and does not necessarily prevent them from visiting the temporary graves or even taking part in the funeral (subject, of course, to relevant security considerations). The proper burial of the terrorists, in accordance with their religious customs, and in a way that allows future identification of their bodies, further minimizes the violation of their dignity. Therefore, in weighing this violation against the substantial security purposes underlying the policy, by virtue of which the Military Commander's decisions were made, the scales tip, in principle, in favor of the latter.

 

            One should bear in mind that the policy adopted by the Ministerial Committee on National Security Affairs, in light of which the Military Commander acted—and intends to act—is restricted and limited. It only relates to the bodies of terrorists identified with Hamas, or ones whose brutal actions earned them "value" in the eyes of this terrorist organization. Furthermore, the Military Commander's decisions concern terrorists who went on blind, brutal killing sprees—even if, fortunately, they were unable in some cases to put their evil plans into practice (see and compare, for example the Abu Hdeir case, para. 33 per Deputy President E. Rubinstein). As long as there is real cause to assume that the Military Commander's decisions are effective—in the sense that they can further the security interests involved in repatriating the civilians and the bodies of fallen soldiers held by Hamas, even if not in any immediately apparent way—they fall within the bounds of reasonableness and proportionality, and we should not intervene.

 

25.       In closing, purposive interpretation of reg. 133(3) of the Defence Regulations shows that the Military Commander holds broad authority to order the burial of bodies of enemy terrorists or fallen soldiers, based on considerations of protecting the State's security and the safety of its citizens, while respecting the dignity of the dead. There is no doubt that repatriating civilians and fallen IDF soldiers held by the enemy, and minimizing the related security cost, lie at the heart of these considerations. Therefore, the Military Commander is authorized to order the burial of terrorists' bodies in order to further that purpose. The distinction between the sphere of authority and that of discretion is essential. Even when there is justification for limiting the way the authority is exercised, one cannot simply ignore, at the stroke of a pen, the language of the authorizing norm and its purposes, and give it restrictive arbitrary "interpretation". In these cases, the "rays of light" radiated by the Basic Laws will illuminate the discretionary sphere, but they will not change the basic nature of the authorizing norm and undermine its purposes.

 

            The material presented to us suggests that the Military Commander’s decisions before the Court are based on a full, up-to-date, factual foundation, and meet the tests of reasonableness and proportionality. Thus, were my opinion accepted, we would determine  that the Military Commander is authorized to continue to act reasonably and proportionately, within the bounds of his authority, to order the burial of terrorists' bodies.

 

26.       Considering the importance of these issues, and to avoid misunderstanding in a very nuanced issue, I will summarize my position as it relates to the discretionary plane and to the exercise of the authority. I will first state the obvious, which might fall between the stools and the table of terrorism: The desirable situation would be to return the bodies of the dead, including terrorists, to their families—in accordance with the rule laid down by the Ministerial Committee, and without exceptions. However, the abhorrence and brutality exhibited by terrorist organizations, who hold civilians and bodies of fallen IDF soldiers and demand a price not only for those held alive in their custody but for the dead as well, leave no other recourse. In this reality, which is also forced upon us, one has to walk a tightrope between achieving the objective of repatriating Israeli civilians and bodies of fallen IDF soldiers on the one hand, and on the other hand maintaining the dignity of the dead—be they even terrorists. And, of course, if the law recognizes the feelings of terrorists' relatives, then surely the cry of the families of the living and the dead held by Hamas will not let us rest. In other words: acknowledging reality, listening to the voice of the living who have not returned home and to the voice of the blood of our brothers who have not been brought to rest, and upholding the basic principles of the State of Israel as a Jewish and democratic state.

 

            Of particular importance, in this regard, is the exact delineation of the Respondents' policy, according to which—as the attorney for the State has made clear—holding terrorists' bodies constitutes a rare exception. That is, even bodies of terrorists falling under both relevant categories will be buried temporarily only against a background of concrete negotiations for the repatriation of civilians and the bodies of fallen soldiers held by the terrorist organizations. The transfer of bodies should not be prevented in anticipation of what the future might bring. The security establishment is supposed, as it has done in this case, to exercise case-by-case discretion with regard to facilitating negotiations for the return of the Hamas-held civilians and fallen IDF soldiers. This is a very delicate matter. We should not turn a blind eye to the nature of negotiations in such sensitive matters between the State and a terrorist organization, even by means of a third party. A terrorist organization might declare that there is no negotiation in progress, where in reality this is not the case but only another stage in the negotiation. What matters is that if negotiations are indeed nonexistent, and no concrete contacts of any kind are underway for a deal, the bodies are to be returned. However, as long as there is a chance that is neither hypothetical nor slim of further  negotiations, there is no obligation to return them. Another important point is, as noted above, that the dignity of the dead requires their burial. A situation in which terrorists' bodies are held over time in some form other than burial—be it even, as in the cases before us, by request of the families—might excessively violate the dignity of the dead and the principles that are binding under international law. In this case, there is no need to quantify and draw time limits, but, as noted, the more time that elapses, the greater the need to bury the corpse, and the time dimension also constitutes a consideration with regard to its time of return. Again, there are no set formulas. This depends on the contacts, the negotiations, and the point that they have reached. In our case, based on the material submitted, it seems that this how the Respondents are acting in this case—although, as I see it, it is time to bring the bodies being held to temporary burial. Of course, the Ministerial Committee on National Security Affairs and the Military Commander must periodically review the existing policy—and how it is implemented in specific cases—and avoid the burial of bodies in Israel when this does not contribute to facilitating negotiations for the repatriation of the Hamas-held civilians and fallen soldiers.

 

27.       All that remains is to express the hope that a burst of humaneness—or at least the Hamas's interest—will overtake the madness of terrorism and allow the dead to rest in peace. If exercising the authority under reg. 133(3) of the Defence Regulations can accelerate the safe return of civilians Avera Mengistu and Hisham a-Sayed to their families, and the return for interment in Israel of IDF combatants Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, I shall be content. I would deny the petition without an order for costs. In my view, it would be right to rescind the interim order and bring the two remaining bodies to temporary burial as soon as possible, in such place as shall be determined by the Military Commander.

 

 

 

The petitions are granted by the majority opinion of Justices Y. Danziger and G. Karra, contrary to the dissenting opinion of Justice N. Hendel, according to which the petitions should be denied.

 

Given this day, 26 Kislev 5778 (December 14, 2017).

 

 

 

HCJ 7040/15 HCJ 7076/15 HCJ 7077/15 HCJ 7079/15 HCJ 7081/15 HCJ 7082/15 HCJ 7084/15 HCJ 7085/15 HCJ 7087/15 HCJ 7092/15 HCJ 7180/15
Petitioner in HCJ 7040/15              Fadl Mustafa Fadl Hamed       Petitioners in HCJ 7076/15            1.   Haj Hamed Abdallah                                                         2.  Hosni Meshaki                                                         3.  Ahmed Zoan                                                         4.  Rushida Bashir                                                         5.  Maryam Ganem                                                         6.  Jamal Ziat                                                         7.  Cooperative Housing Co. of Government Workers                                                         8.  HaMoked Center for the Defence of the Individual               Petitioners in HCJ 7077/15:           1.   Zinab Munir Ashak Inaem                                                         2.  Ali Munir Ashak Inaem                                                         3.  HaMoked Center for the Defence of the Individual             .             Petitioners in HCJ 7079/15:            1.  Lutfi Rizek                                                          2.  Rina Rizek                                                          3.  Dana Lutfi Rizek                                                          4.  Zaid Lutfi Rizek                                                          5.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7081/15:           1.  Hadija Ahmed Hassan Amar                                                         2.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7082/15:            1.  Afef Ahmed Rizek                                                          2.  Ashraf Fathi Rizek                                                          3.  Talal Lutfi Rizek                                                          4.  Nasser Omar Rizek                                                          5.  Ahmed Omar Rizek                                                          6.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7084/15:             1.  Hamed Seriah Abd Elmajid Mustafa                                                           2.  Noeman Salah Jumah Hamed                                                           3.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7085/15:             1.  Muhamad Haj Hamed                                                           2.  Hiam Haj Hamed                                                           3.  Yusrah Haj Hamed                                                           4.  Abdelrahman Hamed                                                          5.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7087/15:            1.  Welaa Kussa                                                          2.  HaMoked Center for the Defence of the Individual             Petitioners in HCJ 7092/15:             1.  Welaa Alam Kussa                                                           2.  Mahmoud Zahir Kussa                                                           3.  HaMoked Center for the Defence of the Individual                         Petitioner in HCJ 7180/15:               Lina Abdelghani             v.   Respondents in HCJ 7040/15, HCJ 7076/15 and HCJ 7084/15:      1.  Military Commander in the West Bank                                                           2.  Legal Advisor for the Judea and Samaria Region                           Respondents in HCJ 7077/15:         1.  Military Commander in the West Bank                                                          2.  Legal Advisor for the Judea and Samaria Region                                                          3.  Fadl Elbasha                        Respondent in HCJ 7079/15, HCJ 7081/15, HCJ 7085/15, HCJ 7087/15, HCJ 7092/15 and HCJ 7180/15:                           IDF Commander in the West Bank      Requesting to join as Respondents in HCJ 7081/15:         1.  Almagor – Organization of Victims of Terror in Israel                                                         2.  Devorah Gonen                                                         3.  Eliezer Rosenfeld             For the Petitioner in HCJ 7040/15: Mufid Haj, Adv. For the Petitioners in HCJ 7076/15: Gabi Lasky, Adv. For the Petitioners in HCJ 7077/15: Michal Pomerantz, Adv. For the Petitioners in HCJ 7079/15, HCJ 7085/15, 7180/15:  Labib Habib, Adv. For the Petitioners in HCJ/7081/15, 7082/15:  Andre Rosenthal, Adv. For the Petitioners in HCJ 7092/15: Lea Tsemel, Adv. For the Respondents in HCJ 7040/15, HCJ 7077/15, HCJ 7081/15, HCJ 7084/15/ HCJ 7180/15: Avinoam Segal-Elad, Adv. For the Respondents in HCJ 7082/15, HCJ 7087/15, HCJ 7092/15: Yuval Roitman, Adv., Yonathan Zion Mozes For the Request to Join as Respondents: Pro Se   The Supreme Court sitting as High Court of Justice Before: President M. Naor, Justice H. Melcer, Justice N. Sohlberg   Objection to a Decree Nisi   [1]       HCJ 4597/14 Awawdeh v. Military Commander [2]       HCJ 5290/14 Qawasmeh v. Military Commander in the West Bank [3]       HCJ 8091/14 HaMoked Center for the Defence of the Individual v. Minister of Defense [4]       HCJFH 360/15 HaMoked Center for the Defence of the Individual v. Minister of Defense [5]       HCJ 5696/09 Mughrabi v. GOC Home Front Command (Feb. 15, 2012). [6]       HCJ 5667/91 Jabarin v. IDF Commander in Judea and Samaria, IsrSC 46(1) 858 (1992). [7]       HCJFH 2161/96 Sharif v. GOC Home Front Command, IsrSC 50(4) 485 (1996). [8]       HCJ 8084/02 Abbasi v. GOC Home Front Command, IsrSC 57(2) 55 (2003). [9]       HCJ 9353/08 Hisham Abu Dheim et al. v. GOC Home Front Command, (Jan. 5, 2009). [10]     HCJ 6288/03 Sa’adah v. GOC Home Front Command, IsrSC 58(2) 289 (2003). [11]     HCJ 8066/14 Abu Jamal v. GOC Home Front Command, (Dec. 31, 2014). [12]     HCJ 10467/03 Sharbati v. GOC Home Front Command, IsrSC 58(1) 810 (2003). [13]     HCJ 7473/02 Bahar v. IDF Commander in the West Bank, IsrSC 56(6) 488 (2002). [14]     HCJ 3363/03 Baker v. IDF Commander in the West Bank (Nov. 3, 2003). [15]     HCJ 8262/03 Abu Selim v. IDF Commander in the West Bank, IsrSC 57(6) 569 (2003). [16]     HCJ 2/97 Abu Halaweh v. GOC Home Front Command (Aug. 11, 1997). [17]     HCJ 8575/03 Azzadin v. IDF Commander in the West Bank, IsrSC 58(1) 210 (2003). [18]     HCJ 5839/15 Cedar v. IDF Commander in the West Bank (Oct. 15, 2015). [19]     HCJ 6396/96 Zakin v. Mayor of Beer Sheba, IsrSC 53(3) 289 (1999). [20]     HCJ 124/09 Dawiat v. Minister of Defence (March 18, 2009). [21]     HCJ 358/88 Association for Civil Rights in Israel v. GOC Central Command, IsrSC 43(2) 529 (1989). [22]     HCJ 7219/15 Abu Jamal v. GOC Home Front Command (Nov. 3, 2015). [23]     HCJ 361/82 Hamari v. GOC Judea and Samaria, IsrSC 36(3) 439 (1982). [24]     HCJ 802/89 Nisman v. IDF Commander in the Gaza Strip, IsrSC 43(4) 461 (1989). [25]     HCJ 897/86 Jabber v. GOC Central Command, IsrSC 41(2) 522 (1987). [26]     HCJ7823/14 Javis v. GOC Home Front Command (Dec. 31, 2014). [27]     HCJ 2418/97 Abu Farah v. IDF Commander in Judea and Samaria, IsrSC 51(1) 226 (1997). [28]     HCJ 6026/94 Nazal v. IDF Commander in Judea and Samaria, IsrSC 48(5) 338 (1994). [29]     HCJ 893/04 Faraj v. IDF Commander in the West Bank, IsrSC 58(4) 1 (2004). [30]     HCJ 454/86 Tamimi v. Military Commander in the West Bank (Oct. 6,1986). [31]     HCJ 1245/91 Fukhah v. Military Commander in the West Bank (Dec. 31,1991). [32]     HCJ 299/90 Nimmer v. IDF Commander in the West Bank, IsrSC 45(3) 625 (1991). [33]     HCJ 350/86 Elzak v. Military Commander in the West Bank (Dec. 31,1986). [34]     HCJ 542/89 Aljamal v. IDF Commander in Judea and Samaria (July 31,1989). [35]     HCJ 1056/89 Alsheikh v. Minister of Defence (March 27, 1990). [36]     HCJ 869/90 Lafrukh v. IDF Commander of the Judea and Samaria Area – Beit El (May 3, 1990). [37]     HCJ 3567/90 Sabar v. Minister of Defence (Dec. 31,1990). [38]     HCJ 3740/90 Mansour v. IDF Commander in Judea and Samaria (Jan. 8, 1991). [39]     HCJ 6299/97 Yassin v. Military Commander in the Judea and Samaria Region (Dec. 4, 1997). [40]     HCJFH 11043/03 Sharbati v. GOC Home Front Command (Jan. 18, 2004). [41]     HCJ 4747/15 Abu Jamal v. GOC Home Front Command (July 7, 2015). [42]     HCJ 1730/96 Salem v. IDF Commander, IsrSC 50(1) 353 (1996). [43]     HCJ 228/89 Aljamal v. Minister of Defence, IsrSC 43(2) 66 (1989). [44]     HCJ 6745/15 Abu Hashia v. Military Commander in the West Bank (Dec. 1, 2015). [45]     HCJ 2722/92 Alamrin v. IDF Commander in the Gaza Strip, IsrSC 46(3) 693, 699 (1992). [46]     HCJ 2006/97 Ghanimat v. GOC Central Command, IsrSC 51(2) 651 (1997). [47]     HCJ 6932/94 Abu Elrob v. Military Commander in the Judea and Samaria Region (Feb. 19, 1995). [48]     HCJ 8124/04 Al-Jaabri v. IDF Commander in the West Bank (Oct. 12, 2004). [49]     HCJ 4112/90 Association for Civil Rights in Israel v. GOC Southern Command, IsrSC 44(4) 626 (1990). [50]     HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, IsrSC 62(1) 507 (2006). [51]     HCJ 2056/04 Beit Sourik Village Council v. State of Israel, IsrSC 58(5) 807 (2004). [52]     CA 7703/10 Yeshua v. State of Israel – SELA (June 18, 2014). [53]     HCJ 24/91 Timro v. IDF Commander in the Gaza Strip, IsrSC 45(2) 325 (1991). [54]     HCJ 5139/91 Zakik v. IDF Commander in the West Bank, IsrSC 46(4) 260 (1992). [55]     HCJ 3301/91 Bardaiya v. IDF Commander in the West Bank (Dec. 31,1991). [56]     HCJ 2717/96 Wafa v. Minister of Defence, IsrSC 50(2) 848 (1996). ]57]      HCJ 7607/05 Abdullah (Hussein) v. IDF Commander in the West Bank (Feb. 14, 2005). [58]     HCJ 466/07 MK Zehava Gal-On, Meretz-Yahad v. Attorney General, IsrSC 65(2) 1 (2012). [57]     HCJ 434/79 Sahwill v. Commander of the Judea and Samaria Region, IsrSC 34(1) 464 (1979).

 

 

JUDGMENT

President M. Naor

We have before us a series of petitions filed against forfeiture and demolition orders issued for the homes of Palestinians from the Judea and Samaria area, who are accused or suspected of having committed murderous acts of terror in recent months.

Background

1.         Over the past two years, the security situation has deteriorated, both within the territory of Israel and in the Judea and Samaria area. This manifests itself in a constant rise in the incidence of terror attacks against Israeli citizens, including fatal attacks leading to the death and injury of dozens of people (see also: HCJ 4597/14 Awawdeh v. Military Commander in the West Bank, [1] para. 2 of my opinion (hereinafter: Awawdeh); HCJ 5290/14 Qawasmeh v. Military Commander in the West Bank [2], paras. 1-3 per Justice Y. Danziger (hereinafter: Qawasmeh). In recent weeks, there has been a further significant increase in the incidence of acts of terror. According to the data submitted by the Respondents in their responses, from the Eve of the Jewish New Year and until October 25, 2015, 778 attacks were recorded, in which eleven people were killed and another one hundred or so were wounded. Unfortunately, the wave of terror continues at present, and terror attacks, and attempts to carry out attacks, occur on a daily basis throughout Israel and in the Judea and Samaria area.

2.         As part of the general escalation, three serious shooting attacks occurred in recent months, in which Israeli citizens were murdered in cold blood. The details of these attacks, which are the focus of the petitions before us, are as follows: on June 19, 2015, Danny Gonen was murdered by shots from close range in a fatal attack close to the Ein Bubin Spring. Danny’s friend, Netanel Hadad, was wounded. According to the Respondents, the terrorist who carried out the attack is Muhammed Husseini Hassan Abu Shahin (hereinafter: Abu Shahin), who confessed to the attack in the course of his police interrogation. According to the Respondents, Abu Shahin’s confession is well supported by findings from the scene of the attack, and includes references to details that were not disclosed to the public. In addition, Abu Shahin confessed to the perpetration of a series of additional attacks, including thirteen attempted murders. On this basis, Abu Shahin was charged on August 17, 2015 on twenty-four counts, the first of which was causing the death of Danny Gonen and wounding Netanel Hadad.

3.         On June 29, 2015, another fatal shooting attack was carried out, in which Malakhi Rosenfeld was killed and three other people were wounded. According to the Respondents, the terrorists who carried out this attack were members of Hamas from the Judea and Samaria area, named Ma’ed Salah Jumah Hamed (hereinafter: Ma’ed) and Abdullah Munir Salah Ashak (hereinafter: Abdullah). From the interrogation of Abdullah – in the course of which he confessed to the acts and also incriminated Ma’ed – it emerged that he and Ma’ed belonged to a Hamas cell that planned to carry out a shooting attack against Israeli citizens. In this framework, on June 27, 2015, the two of them attempted to carry out a shooting attack against Israeli vehicles, which fortunately ended without harm to life or property. Two days later, Ma’ed and Abdullah met for the purpose of carrying out another shooting attack. The two of them drove towards the village of Maghar, and on the way they spotted an Israeli vehicle in which the victims were driving. When the Israeli vehicle stopped close to the attackers’ vehicle, Ma’ed opened the window of the vehicle and fired his Karl Gustav rifle in the direction of the passengers. Malakhi Rosenfeld was killed in the shooting, and three others were wounded. To support the responsibility of Ma’ed and Abdullah for these acts, the Respondents attached Abdullah’s police confession to their response, as well as the information filed against him.

4.         On October 1, 2015, terrorists carried out another vicious shooting attack in the area of the Beit Furik Junction. In this attack, Na’ama and Eitam Henkin were killed in front of their four young children, who were in the car with them and were left orphaned. According to the Respondents, three terrorists belonging to Hamas participated in the attack: Harem Lutfi Fathi Rizek (hereinafter: Rizek); Samir Zahir Ibrahim Kussa (hereinafter: Kussa); and Yehieh Muhamed Na’if Abdullah Haj Hamed (hereinafter: Hamed). In their response, the Respondents noted that the three of them had confessed to carrying out the attack, but they did not attach the actual confessions. After a discussion in an oral hearing before us, the confessions were submitted (parts of which were blacked out) to the Court, as well as to the Petitioners. In those confessions, which are consistent with each other, the three described, inter alia, their part in the murder and their motives for committing it.

The Forfeiture and Demolition Orders that are the Subjects of these Petitions

5.         Due to the severity of the three attacks described above, and the need to deter potential terrorists from perpetrating similar acts, the Military Commander in Judea and Samara (hereinafter: the Military Commander) decided to exercise his power under Regulation 119 of the Defence (Emergency) Regulations 1945 (hereinafter: Defence Regulations) by confiscating and demolishing the homes in which the terrorists lived. Six different buildings in the Judea and Samaria Area are involved.

The eleven petitions before us were filed against the decision of the Military Commander to demolish the said six buildings. Before we describe the petitions, we will sketch out a general picture of the buildings marked for demolition:

            (a)        The home of Ma’ed, suspected of the murder of Malakhi Rosenfeld (HCJ 7084/15): This is a single-story house built on a terrace, situated in Kfar Silwad, north of Ramallah.

            (b)       The home of Abdullah, accused of the murder of Malakhi Rosenfeld (HCJ 7040/15; HCJ 7077/15; HCJ 7180/15): This is apartment no. 23 situated on the top floor of a residential, eight-story building, in Kfar Silwad, north of Ramallah.

            (c)        The home of Hamed, a suspect in the murder of the Henkin couple (HCJ 7076/15; HCJ 7085/15): These are the two middle floors of a four-story building, in the Askan Rug’ib district of the city of Nablus.

            (d)       The home of Rizek, a suspect in the murder of the Henkin couple (HCJ 7079/15; HCJ 7082/15): This is an apartment on the second (middle) floor of a three-story building, in the Arak a-Ti’ah neighborhood of Nablus.

            (e)        The home of Kussa, a suspect in the murder of the Henkin couple (HCJ 7087/15; HCJ 7092/15): This is an apartment on the ground floor of a building with two stories that are built, and another one in advanced stages of construction, in the Dahi’ah neighborhood of Nablus.

            (f)        The home of Abu Shahin, a suspect in the murder of Danny Gonen (HCJ 7081/15): This is an apartment on the top floor of a three-story building, in the Qalandia refugee camp.

We will now describe the petitions concerning the six buildings. Note that our discussion of the petitions does not follow the order in which they were filed, but rather, the order in which we decided to address the various issues that arose.

Respondent’s decision with respect to the Petitioners in HCJ 7084/15 (regarding the demolition order for Ma’ed’s home)

6.         Ma’ed is a suspect in the murder of Malakhi Rosenfeld. According to the Respondents, he lived in a one-story building constructed on a terrace in Kfar Silwad, north of Ramallah. In this house – which is registered in the name of the father of the family, who is deceased – live the mother and brothers of the suspect, Ma’ed. On October 15, 2015, the Military Commander informed the suspect’s family that he intends to confiscate and demolish the entire building, and that if they wish to file an objection, they must do so in writing by Saturday, October 17, 2015. The family filed an objection, which was dismissed on October 19, 2015. On the very same day, the Military Commander signed the forfeiture and demolition order for Ma’ed’s home. Three days later, Ma’ed’s family petitioned this Court (HCJ 7084/15). The HaMoked Center for the Defence of the Individual, founded by Dr. Lotte Salzberger, filed a petition together with them (hereinafter: HaMoked Defence Center).

 

Respondent’s decision with respect to the Petitioners in HCJ 7040/15, HCJ 7077/15 and HCJ 7180/15 (regarding the demolition order for Abdullah’s home)

7.         Abdullah, accused of the murder of Malakhi Rosenfeld, lived in apartment no. 23, on the top floor of a residential building of eight stories, also located in Kfar Silwad. The apartment is leased by the mother of the accused, and his brothers and sister live there as well. On October 15, 2015, the Military Commander notified the family that he intended to confiscate and demolish the said apartment, and that if they wished to file an objection, they must do so by Saturday, October 17, 2015. The Military Commander did not notify the owners of the building and its other residents of his intention to demolish Abdullah’s apartment. Nevertheless, together with the objection filed by the family of the accused, objections were also filed on the part of the other residents of the building and on the part of the owner, Mr. Fadl Mustafa Fadl Hamed (hereinafter: the owner of the building), who rented out the apartment marked for demolition to Abdullah’s mother. After the three objections were dismissed and the forfeiture and demolition order signed, each of the objectors filed a petition against the order (HCJ 7040/15 – petition of the owner of the building; HCJ 7077/15 – the petition of the family of the accused and HaMoked Defence Center; HCJ 7180/15 – the petition of the residents of the building and HaMoked Defence Center).

Respondent’s decision with respect to the Petitioners in HCJ 7076/15 and HCJ 7085/15 (regarding the demolition order for Hamed’s home)

8.         Hamed is a suspect, as stated, in the shooting attack in which the Henkin couple were killed. Hamed’s home is in the Askin Rug’ib district of Nablus, in a four-story building. According to the Respondents, Hamed lived on the two middle floors of the building. They say that Hamed lived with his parents on the first floor (above the ground floor), whereas the second floor, which is in the final stages of construction, is intended for Hamed’s future residence. In any case, it is claimed that of late, Hamed sometimes lived in that apartment as well. On October 15, 2015, the Military Commander notified the family that he intended to confiscate and demolish the first floor and the second floor, and that if they wished to file an objection, they must do so in writing by Saturday, October 17, 2015. It should be noted that it was mistakenly written in the Arabic version of the notice that the Military Commander intended to confiscate and demolish the ground floor of the building. The suspect’s family filed an objection, as did a resident of the ground floor of the building – the brother of the suspect – as well as the residents of the adjacent buildings. In the framework of the decisions on the objections, the Military Commander apologized for the mistake in the Arabic version of the notice, and explained that, as noted in the Hebrew version, the intention was to demolish the first and second floors of the building. Subsequently, the objections of the family members were dismissed. The objections of the neighbor and of the residents of the adjacent buildings were likewise dismissed. Following the dismissal of the objections and after the Military Commander signed the forfeiture and demolition order, the objectors, together with HaMoked Defence Center, filed petitions in this Court (HCJ 7076/15 – the petition of the resident of the ground floor and the residents of the buildings adjacent to the building marked for demolition; and HCJ 7085/15 – the petition of the family members, including the mother of the suspect, who also owns the building).

Respondent’s decision with respect to the Petitioners in HCJ 7079/15 and HCJ 7082/15 (regarding the demolition order for Rizek’s home)

9.         Rizek, too, is suspected of having participated in the attack in which the Henkin couple were murdered. The apartment in which Rizek lived is in the Arak a-Ti’ah neighborhood of Nablus. This is an apartment on the second (middle) floor of a three-story building, in which Rizek’s parents and brothers also live. On October 15, 2015, the Military Commander notified the family that he intended to confiscate and demolish the second floor of the building, and that if they wished to file an objection, they must do so in writing by Saturday, October 17, 2015. The family, as well as other residents of the building, filed two objections – which were dismissed. Immediately subsequent to this, the Military Commander signed the forfeiture and demolition order. Thereafter, the objectors, together with HaMoked Defence Center, filed two petitions in this Court (HCJ 7079/15 – the petition of the family members, and HCJ 7082/15 – the petition of other residents in the building).

 

Respondent’s decision with respect to HCJ 7087/15 and HCJ 7092/15 (regarding the demolition order for Kussa’s home)

10.       Kussa was the third suspect in the attack in which the Henkin couple were murdered. The apartment in which Kussa lived is in the Dah’ia neighborhood of the city of Nablus. This is an apartment on the ground floor of a building of which two floors are built, and the third is in advanced stages of construction. On October 15, 2015 the Military Commander notified the suspect’s family that he intended to confiscate and demolish the ground floor of the building, and that if they wished to file an objection, they must do so in writing by Saturday, October 17, 2015. Members of the family filed an objection, as did other residents in the building. After the objections were dismissed and the Military Commander signed the forfeiture and demolition order, the objectors, together with HaMoked Defence Center, filed petitions in this Court (HCJ 7087/15 – the petition of the suspect’s wife, who lives with their three children in the apartment marked for demolition; and HCJ 7092/15 – the petition of other residents in the building).

Respondent’s decision with respect to the Petitioner in HCJ 7081/15 (regarding the demolition order for Abu Shahin’s home)

11.       Abu Shahin, who is accused of the murder of Danny Gonen, lived with his family in an apartment on the top floor of a three-story building, in the Qalandia refugee camp. On October 15, 2015, the Military Commander notified the members of the family who lived with the accused and their relatives, members of the Amar family, that he intends to confiscate and demolish the third floor of the building. The notice stated that if they wish to file and objection, they must do so in writing by Saturday, October 17, 2015. An objection filed by the accused’s grandmother, Mrs. Hadija Amar, who lives on the first floor of the building, was dismissed on October 19, 2015. On that same day, the Military Commander signed the forfeiture and demolition order for Abu Shahin’s home. Three days later, Mrs. Amar, together with HaMoked Defence Center, filed a petition against the order (HCJ 7081/15). In order to complete the picture, it should be noted that according to the Respondents, the apartment marked for demolition is owned by the uncle of the accused, Ibrahim Abdullah Amar. Nevertheless, Mrs. Amar claimed that she owns the whole building, including the accused’s apartment on the top floor.

 The Main Arguments of the Parties

Fundamental Arguments Common to all the Petitions

12.       In the petitions before us, several arguments arose that are common to them all. First, according to the Petitioners, demolition of the homes of Palestinian residents in the Judea and Samaria area – in which the laws of belligerent seizure apply – constitutes a violation of international humanitarian law and human rights law. They contend that the destruction of homes is contrary to the prohibition against destroying property except where absolutely necessary for military purposes (Art. 53 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (CA 1, 453 (opened for signature in 1949) (hereinafter: Fourth Geneva Convention); Article 46 of the Fourth Hague Convention concerning the Laws and Customs of War on Land, including the Regulations respecting the Laws and Customs of War on Land (1907) (hereinafter: Hague Regulations), constitutes prohibited collective punishment (Art. 33 of the Fourth Geneva Convention; Reg. 50 of the Hague Regulations), and is contrary to the duty to ensure the welfare of the child (Art. 38 of the Convention concerning the Rights of the Child, (opened for signature in 1989). Against this background, and based on the opinions of Israeli academic experts in public international law, it was argued that extensive demolition of homes is liable to amount to a war crime under international criminal law and the Rome Statute of the International Criminal Court (1998). The Petitioners are aware of the institutional difficulty in a reexamination of the constitutionality of the policy of demolition of homes that has been approved by the Court over a long period. However, according to them, in view of the serious implications of the policy of demolition of homes, its examination is justified in the framework of the petitions before us.

The Petitioners further argued that even though the justification for demolishing the homes of terrorists is, according to the case law of this Court, deterrent and not punitive, there is no proof that demolishing homes actually serves the purpose of deterring potential terrorists. In this context Petitioners recalled that in 2005, the Minister of Defence accepted the recommendations of the think tank headed by General Udi Shani (hereinafter: the Shani Committee), according to which the demolition of homes should be stopped, in view of doubt as to its effectiveness. The Petitioners argued that it is not acceptable that the Respondents refrain from presenting empirical data or other evidence in support of the claim that demolition of homes deters potential terrorists from carrying out attacks. This, notwithstanding the comments of Justices E. Rubinstein and E. Hayut in HCJ 8091/14 HaMoked Center for the Defence of the Individual v. Minister of Defense [3] (hereinafter: the HaMoked Defence Center case), according to whom the Respondents ought to conduct “follow-up and research on the matter,” and “insofar as possible, should, as may be necessary in the future, present this Court with the data demonstrating the effectiveness of house demolition as a means of deterrence that justifies the infliction of harm to parties who are not suspected nor accused” (ibid., para. 27 per Justice E. Rubinstein). Another common argument is that of discrimination. According to the Petitioners, Reg. 119 of the Defence Regulations is implemented in a way that discriminates between Jews and Arabs. Whereas the homes of Arabs who perpetrated terror attacks have been demolished, the homes of Jews who carried out similar attacks are still standing. Finally, it was argued that the amount of time that was given to the Petitioners to file objections against the intention to demolish the buildings, and the amount of time given them to petition this Court against the orders that were issued was unreasonably short. Some of the Petitioners also pointed out that the forty-eight hours that they were given to file objections included days of rest. Moreover, some of the Petitioners argued that there were additional flaws in the hearing process, first and foremost the refusal of the Respondents to allow the Petitioners to examine material on which the decisions were based, such as the incriminating evidence against the suspects and the engineers’ reports in accordance with which the demolitions will be carried out.

13.       The Respondents argued in reply that all the fundamental arguments should be dismissed. In response to the Petitioners’ arguments that rely on international law, the Respondents argued that the Court has decided on a number of occasions, and recently in the HaMoked Defence Center case [3], that the demolition of terrorists’ homes is a legitimate action that is consistent with international and domestic law. The Respondents argued that the Petitioners showed no reason justifying a reexamination of these arguments. The Respondents also argued that in the present security reality, exercise of the authority under Reg. 119 of the Defence Regulations is essential in order to deter additional, potential attackers. According to them, the question of the effectiveness of the policy of demolition of homes has been addressed in a string of judgments (for example, in the HaMoked Defence Center case [3] in which a petition on a question of principle against use of the tool of demolishing the homes of terrorists was dismissed; a petition for a further hearing on that judgment was dismissed today (HCJFH 360/15 HaMoked Center for the Defence of the Individual v. Minister of Defense [4] (hereinafter: HCJFH HaMoked Defence Center). Indeed, as the Respondents agree, several years ago the Shani Committee recommended restricting the method of home demolitions to the point of non-use, but with the growing wave of terror, the need to use this authority in Jerusalem (as of 2008) and in the Judea and Samaria area (as of 2014) arose once more. The Respondents contend that renewal of use of the measure of demolitions is the result of circumstances of time and place, and as the face of terror changes, the Military Commander is required to act accordingly, changing the measures that he adopts. The Respondents further argued that the policy is implemented proportionately, and that in the framework of the balances that were considered, weight was attributed to the gravity of the deeds; the perpetrator’s residential connection to the home; the size of the home; the impact of implementing this measure on other people; engineering considerations, etc. It was also argued that in accordance with the case law of this Court, the claim of discrimination must be dismissed. Finally, it was argued that there is no substance to the Petitioners’ arguments regarding the hearing process.

 

Specific Arguments

14.       A number of specific arguments were also raised in the petitions, on which I will elaborate below, in relation to each order that was issued for the homes that are the subjects of the petitions before us. At the same time, we will already note at this stage that the main thrust of the specific arguments relates to the factual foundations on which the Respondents based their decision; to doubts in relation to the rational connection between the means of demolishing homes and the deterrent purpose in certain cases; to the delay in exercising the authority; to the possible harm to adjacent apartments and buildings; and to the question of whether the Respondents must provide compensation for this harm. The Respondents, on their part, argued that these claims, too, must be dismissed, as will be explained below.

 

The Proceedings in this Court

15.       In all these petitions, requests for interim orders were made and granted. In accordance with the interim orders, the Respondents were prohibited from confiscating and demolishing the six dwellings until the petitions were decided.

16.       On 27 October 2015, the Almagor Association, an organization for the victims of terror in Israel, together with the mother of Danny Gonen and the father of Malakhi Rosenfeld, asked to be joined as respondents to the petitions. We allowed them to submit their positions in writing, and to present oral arguments during the hearing on the petitions. They asked to express the voice of the grieving families, whose pain needs no elaboration, in support of the demolition of the homes of terrorists which, according to them, is liable to prevent additional victims of terror.

17.       A hearing was held before this Court on October 29, 2015. The petitions raise common questions, and some relate to the same buildings. We therefore decided to address them together. Nevertheless, each of the petitions has its own particular aspects, which must be considered separately.

18.       At the start of the oral hearing, we asked counsel for the Respondents whether the petitions could be treated as if a decree nisi had been issued. Initially, the Respondents answered in the negative, but after the hearing, they submitted notice that they agreed to this request. Furthermore, with the consent of counsel for the Petitioners, we examined confidential material ex parte, which addressed the deterrent power of the policy of the demolition of homes. At our instruction, a copy of the material was later sent to the Court, to be kept in the Court’s vault as part of the exhibits submitted in the present petitions. On November 9, 2015 a request was submitted on the part of the Petitioners to examine the possibility of revealing the confidential material, or at least some of it, to the Petitioners for their examination. The request was also raised in the oral hearing before us (see: transcript of the hearing of October 29, 2015, page 32). We did not find it possible to grant this request.

19.       Finally, after necessary clarifications on certain matters, on November 2, 2015 the Respondents submitted a supplementary notice (hereinafter: supplementary notice). In the framework of the supplementary notice, the Respondents argued that in each of the cases that are the subjects of the petitions, the various alternatives for executing the orders were examined (full demolition, demolition of internal walls and ceiling, or sealing the apartment). According to them, this examination revealed that all six structures should be destroyed “due to the full set of relevant circumstances, including engineering, operative and operational considerations, as well as considerations of deterrence.” The Respondents further explained that if the adjacent buildings were damaged as a result of negligent planning or execution of the demolition of the structures marked for demolition, the State would agree – beyond the letter of the law – to repair the building or to compensate its owners. This would be subject to the opinion of an appraiser and a string of additional conditions, namely: that the defect in the demolition of the building did not result from a disturbance of public order; that the owners of the structure did not receive compensation, restitution or participation of any kind for the damage from the Palestinian Authority or any other body; that the injured party is not a citizen of an enemy state or an activist or member of a terrorist organization or anyone acting on their behalf (in accordance with sec. 5B of the Civil Wrongs (Liability of the State) Law, 5712-1952 (hereinafter: Civil Wrongs Law)).

20.       At our request, the Respondents further presented details of the timetables of the execution of earlier demolition orders that had been approved by this Court since 2013. In this framework it emerged that some of the orders were executed immediately after the judgment approving the order was handed down, while some were executed only several months later. One order has not yet been executed, for operational reasons. Additionally, the Respondents attached the following documents to the supplementary notification: the suspects’ confession to the murder of the Henkin couple; the confession of another two people involved in the attack in which Malakhi Rosenfeld was murdered; and a summary of the mapping out of the home of the suspect Hamed.

21.       The Petitioners, on their part, submitted responses to the supplementary notice. In their responses, the Petitioners claimed, inter alia, that it emerges from the Respondents’ notice that alternatives to full demolition were considered only reluctantly. The Petitioners also claimed that the conditions specified by the Respondents for paying compensation to the residents of the adjacent buildings are not reasonable.

Discussion and Decision – Common Arguments

22.       The petitions before us turn on the implementation of Regulation 119 of the Defence Regulations, which authorizes the Military Commander to order the demolition of the houses of suspects or persons accused of hostile activity against the State of Israel.

Forfeiture and Demolition of Property etc.

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

 

23.       The ambit of Regulation 119 of the Defence Regulations, as formulated, is very broad. Nevertheless, the case law of this Court has made clear that the Military Commander must use this power in a cautious, limited manner, in accordance with the principles of reasonableness and proportionality (see, e.g., the Awawdeh case [1], paras. 16-17 of my opinion; HCJ 5696/09 Mughrabi v. GOC Home Front Command [5], para. 12 per Justice H. Melcer (hereinafter: Mughrabi); HCJ 5667/91 Jabarin v. IDF Commander in Judea and Samaria [6]). This case law  is reinforced with the enactment of Basic Law: Human Dignity and Liberty, in light of which the Regulation must be interpreted (see HCJFH 2161/96 Sharif v. Commander of the Home Front [7],  488 (hereinafter: Sharif); HCJ 8084/02 Abbasi v. GOC Home Front Command [8],  59). Therefore, according to the rules developed in the case law, the authority must ensure that the demolition is carried out for a proper purpose and that it meets the proportionality test. In other words, the means adopted must rationally lead to the realization of the goal; the means adopted must achieve the goal with the least possible violation of the protected human rights – the right to property and to human dignity; and finally, the means adopted must be appropriately related to the underlying goal (see: Sharif [7], at pp. 60-61; HCJ 9353/08 Hisham Abu Dheim et al. v. GOC Home Front Command [9], para. 5 of my opinion, and the references there (hereinafter: Abu Dheim)).

24.       As the case law has held, the purpose of the Regulation is deterrent, not punitive. This purpose has been recognized as proper (for criticism of this approach, see, e.g., David Kretzmer, High Court of Justice Review of the Demolition and Sealing of Houses in the Territories, (1993) Klinghoffer Memorial Volume on Public Law 305, 314, 319-27 (Heb.); Amichai Cohen and Tal Mimran, Cost without Benefit in the Housing Demolition Policy: Following HCJ 4597/14 Muhammad Hassan Halil Awawdeh v. Military Commander in the West Bank, HaMishpat Online 5, 11-21 (2014) (Heb.)). Demolition of houses is undoubtedly a drastic, harsh step – primarily due to the harm it causes to the family of the terrorist, who sometimes did not aid him nor know of his plans. Indeed, “[…] the injury to a family member – who has not sinned nor transgressed – when he loses his home and shelter, contrary to first principles, is burdensome. (HaMoked Defence Center case [3], para. 2, per Justice N. Sohlberg). However, given the deterrent force of the use of the Regulation, there is sometimes no choice but to use it (see, e.g., HCJ 6288/03 Sa’adah v. GOC Home Front Command [10],  294 ). Therefore, the case law of this Court has held that when the acts attributed to the suspect are particularly heinous, this may suffice to justify use of this exceptional sanction of demolishing his home, due to considerations of deterrence (see: HCJ 8066/14 Abu Jamal v. Commander of the Home Front [11] para. 9, per Justice E. Rubinstein (hereinafter: Abu Jamal); HCJ 10467/03 Sharbati v. GOC Home Front Command [12], 814 (hereinafter: Sharbati)). These cases are all similar to the present cases, which concern cruel attacks in which Israeli citizens were murdered in cold blood. And all of this against the background of a harsh security situation in which, unfortunately, attacks and attempted attacks directed against the citizens and residents of Israel are a daily occurrence.

 

The Authority of the Military Commander – Compliance of the Policy of Home Demolitions with International Law

25.       The Petitioners contend that the Respondents’ policy violates international humanitarian law and human rights law. These contentions – which go to the root of the authority of the Military Commander to order the forfeiture and demolition of the homes of protected persons – were recently raised before this Court in the HaMoked Defence Center case [3]. This Court did not find grounds for deviating from the case law on this matter (for elaboration, see: ibid., paras. 21 – 24 per Justice E. Rubinstein, and para. 3 per Justice E. Hayut). As stated, today I handed down a decision denying an application for a further hearing of that case (the above-mentioned HCJFH HaMoked Defence Center [4]). In my decision, I noted that a further hearing is intended to address explicit, detailed rulings of the Court, and not questions that the Court did not discuss in depth. I accordingly dismissed the applicants’ main argument that a further hearing should be held precisely because this Court refused to re-examine questions that had been decided in the case law concerning the authority of the Military Commander to order the forfeiture and demolition of the homes of terrorists.

26.       In view of the judgment of this Court in the HaMoked Defence Center case [3], I saw no grounds for revisiting these questions, inter alia, considering the fact that this Regulation has been invoked both within the borders of Israel as well as in the area of Judea and Samaria. On this matter, the words of Justice E. Rubinstein in the HaMoked Defence Center case bear repeating: “we shall see –– with all due respect – that the authority exists, and the main question is that of reasonableness and discretion” (ibid., para. 20). Judicial review of the exercise of authority under Regulation 119 of the Defence Regulations must focus on the subject of discretion, which I will now address.

 

The Effectiveness of the Policy of Demolition of Houses

27.       Over the years, Petitioners have often raised the argument that there is no evidence attesting that the demolition of the homes of terrorists has the potential to deter others from perpetrating acts of terror. A similar argument was made in the present petitions. This Court has ruled more than once that the effectiveness of the policy of demolition of houses is a matter for the evaluation of the security establishment, and that in any case it is difficult to conduct a scientific study that would prove how many attacks were prevented as a result of the demolition activity (see, inter alia: HCJ 7473/02 Bahar v. IDF Commander in the West Bank [13], 490; HCJ 3363/03 Baker v. IDF Commander in the West Bank [14]; HCJ 8262/03 Abu Selim  v. IDF Commander in the West Bank [15], 574-575 (hereinafter: Abu Selim); HCJ 2/97  Abu Halaweh v. GOC Home Front Command [16] (hereinafter: Abu Halaweh).

At the same time, since demolition of houses is, as we have said, a drastic measure – which sometimes violates the basic rights of those who have not been involved in terror – this Court has stressed that the security authorities should periodically examine whether their assessment on this matter is correct and effective (see: HCJ 8575/03 Azzadin v. IDF Commander in the West Bank [17], 213). Recently, it was held in the framework of a judgment in the HaMoked Defence Center case [3], on which the Respondents rely, that even though, at the time, there were no grounds for intervention in the policy of the Military Commander to order the forfeiture and demolition of the homes of terrorists who perpetrated serious attacks, he should bear in mind that he is under a duty to re-examine the effectiveness of this policy. Justice E. Rubinstein wrote as follows:

                      …I believe that the principle of proportionality does not allow us to continue to assume forever that choosing the drastic option of house demolition, or even of house sealing, achieves the desired purpose of deterrence, unless all of the data that properly confirms that hypothesis is presented to us for our review. We accept the premise that it is hard to assess this matter, and this Court has often addressed this problem … However, as aforesaid, I believe that employing means that have considerable consequences for a person’s property justifies an ongoing review of the question of whether or not they bear fruit, especially in view of the fact that claims have been made in this regard even among IDF officials, and see, for example, the presentation of the Major General Shani Committee which, on the one hand, presents a consensus among intelligence agencies regarding the benefits thereof, and on the other hand states, under the title “Major Insights” that “within the context of deterrence, the measure of demolition is ‘eroded’” … Thus I believe that State authorities must examine the measure and its utility from time to time, including conducting follow-up research on the matter, and insofar as possible should, as may be necessary in the future, present this Court with the data demonstrating the effectiveness of house demolition as a means of deterrence that justifies the infliction of damage upon parties who are not suspects nor accused persons […] In my opinion, the requested effort would be appropriate in order to meet the basic requirements of Basic Law: Human Dignity and Liberty, the importance of which in the Israeli democratic system requires no elaboration. We are not setting hard-and-fast rules as to the nature of the required research and data. That will become evident, to the extent necessary, at the appropriate time. At present, of course, the engineering issue should be thoroughly examined in respect of each specific demolition or sealing, in order to ensure that the goal is achieved within its boundaries, and without deviation.

Justice E. Hayut concurred, adding:

Finally, I will say that I attach great importance to the comment made by my colleague Justice Rubinstein concerning the need in the future to conduct, from time to time and to the extent possible, follow-up and research concerning the measure of house demolition and its effectiveness … The recent wave of terror that began with the frequent killings and massacres of innocent civilians, passers-by and congregation members at a synagogue, also marked an extreme change, characterized by terrorists from East Jerusalem, required a renewed application of this measure. However, these extreme cases should not obviate the need that was addressed by my colleague to re-examine from time to time, and raise doubts and questions concerning the constitutional validity of home demolition under the tests of the limitation clause. In his poem, “The Place Where We Are Right” the poet Yehuda Amichai lauds the doubts that should always trouble even the hearts of the righteous:

But doubts and loves

Dig up the world

Like a mole, a plow.

 

And a whisper will be heard in the place

Where the ruined

House once stood

(ibid., para. 6) (and see also, recently, the minority opinion of Justice U. Vogelman in HCJ 5839/15 Cedar v. IDF Commander in the West Bank [18] (hereinafter: Cedar).

28.       Against the above background, and mindful that several months have elapsed since the judgment in the HaMoked Defence Center case [3], we asked the Respondents at the hearing if there had been any examination of the matter. In answer to our question, the Respondents insisted that they were in possession of classified material that supported their argument concerning the benefit derived from demolition of the homes of terrorists (for a similar claim raised by the State in the past, see, e.g., the Abu Selim case [15], at p. 574). With the consent of counsel for the Petitioners, we examined the classified material ex parte. I will emphasize that the material that was presented to us does not fall into the category of “research”, but rather, it is a collation of information. This information attests to a not insignificant number of cases in which potential terrorists refrained from carrying out attacks due to their fear of the consequences for their homes and those of their family.

29.       Having examined the classified material, I am of the opinion that considering the fact that until recently, the number of home demolitions was relatively limited, what was presented to us is sufficient to support the conclusion that there is no cause at this time to intervene in the decision of the Military Commander and the political echelon (that was presented with the material), whereby the demolition of homes indeed constitutes a deterrent factor for potential terrorists, who are afraid of causing harm to their family. As Justice Vogelman noted in the Cedar case, “[…] in fact, if the demolition of the home of one terrorist deters another terrorist from harming human life, then we must say that the selected measure has achieved a benefit which may be the noblest of all imaginable benefits” (ibid., para. 3). Accordingly, the material that was presented to us satisfied me that the fear of harm to the homes of the families of the terrorists constitutes a deterrent for potential terrorists. Therefore, despite the doubts that have been expressed of late in the case law and the literature with respect to the deterrent power of house demolition, I see no reason to depart from the case law, according to which there is, in general, no justification for intervening in the decision of the competent authorities to implement this measure. Nevertheless, I will mention that after studying the material on which the Respondents relied in making their decision, I cannot say that causing damage to a house that is owned by an “outside” third party, who is not a relative of the terrorist and who has no knowledge of his intentions, creates deterrence. The classified material does not lay a foundation for a determination that harm of this kind, too, has a deterrent effect. I will return to this at greater length below.

 

Claim of Discrimination

30.       The Petitioners also argued that the policy of the Military Commander discriminates between Jews and Arabs. This argument should be dismissed. It is well known that the burden of proving a claim of discrimination falls upon the shoulders of the one making the claim. As has been held, this is not a light burden (see: HaMoked Defence Center [3], para. 25 per Justice E. Rubinstein; see also HCJ 6396/96 Zakin v. Mayor of Beer Sheba [19]). The present petitions make a general claim of discrimination, without offering serious support. The Petitioners did not, therefore, present a sufficient factual basis to support their claim, and as such it does not warrant our intervention (see and cf. also: HCJ 124/09 Dawiat v. Minister of Defence [20], para. 6 per Justice E.E. Levy; Sharbati [12], at p. 815; Qawasmeh [2], para 30 per Justice Y. Danziger).

 

The Hearing Process

31.       The Petitioners further argued that the timetable set for the hearing process in their matter was unreasonable. Some also complained that the material on which the Respondents based their decision, such as the evidentiary material incriminating the suspects and the engineering plans for demolishing the buildings, was not made available for their examination.

32.       It is a fundamental principle that an administrative agency may not exercise its authority in a way that may harm a person before that person is given a proper chance to present his arguments. This principle is derived from the conception that an administrative authority must act fairly (see: I. Zamir, Administrative Authority, vol. 2, 1148 (2^nd ed., 2011) (Heb.) (hereinafter: Zamir). The rule that a hearing must be held, and the reasons underlying it, also apply to the exercise of authority under Regulation 119 of the Defence Regulations. As such, as this Court has held in the past, per President M. Shamgar, that the exercise of such authority must normally be delayed in order to allow those who will be harmed thereby to make their arguments:

                      … it would be appropriate that an order issued under Regulation 119 should include a notice to the effect that the person to whom the order is directed may select a lawyer and address the Military Commander before implementation of the order, within a fixed time period set forth therein, and that, if he so desires, he will be given additional time after that, also fixed, to apply to this Court before the order will be implemented. (HCJ 358/88 Association for Civil Rights in Israel v. GOC Central Command [21], 541 (hereinafter: ACRI case).

Only in exceptional circumstances that require carrying out the demolition immediately due to military and operational considerations, will there be no postponement until the hearing is held:

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

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

According to our legal conception, it is, therefore, important that the interested party be able to present his objections before the Commander prior to the demolition, to apprise him of facts and considerations of which he may have been unaware […].

…There are military-operational circumstances in which judicial review is inconsistent with the conditions of time and place or the nature of the circumstances [...].

In my opinion, ways should be found to maintain the right to present one’s claim before implementation of a decision which is not among the types of situations [in which immediate demolition is necessary – M.N.] (ibid., at pp. 540-541) (emphasis added – M.N.)

In the present case, as part of the hearing process, notices were sent to the family members living in the buildings earmarked for demolition. The notices specified the grounds for the planned forfeiture and demolition of their homes. The notice also explained that they could submit an objection to the Military Commander. All the notices concerning the planned demolitions were sent on Thursday, October 15, 2015. The wording of the notices was also essentially the same (with the relevant changes), and the time-tables for submitting objections were identical. For the purpose of illustration, I bring as an example the verbatim wording of one of the notices that were sent (the object of HCJ 7079/15 and HCJ 7082/15):

The Commander of the IDF forces in Judea and Samaria, by virtue of his authority as the Military Commander in the area of Judea and Samaria, in accordance with Regulation 119 of the Defence (Emergency) Regulations, 1945 and his other powers under any law and security legislation, hereby notifies that it is his intention to render forfeit and demolish the apartment on the middle floor of a three-story building in Shechem […] in which the terrorist Karam Lutfi Fathi Rizek resides […].

This measure is adopted because the above-mentioned acted to carry out a terror attack on October 1, 2015 in the course of which he brought about the death by gunfire of the late Henkin couple […]

If you wish to present your arguments or objections to this intention, you must specify them in writing […] by October 17, 2015 at 12:00 […]

Any factual or legal claim that you raise must be supported by documentation and other proofs, which must be attached to your letter to the Military Commander (emphasis added – M.N.).

In my opinion, in the matter at hand, the timetable that was set is problematic. In all the present cases, the amount of time given to the Petitioners to submit objections was very short: from Thursday, Oct. 15, 2015 until Saturday, Oct. 17, 2015, which included days of rest. Is this a coincidence? I accept that, usually, demolition orders that are issued for the homes of terrorists must be carried out quickly in order to achieve deterrence. Fixing tight schedules is therefore justified. Nevertheless, and despite the urgency, the timetables must be reasonable and fair under the whole set of circumstances (see and cf: the ACRI case, at pp. 540-541; see also: Zamir, at p. 1177). This conclusion is derived from the basic principle that a competent authority has not fulfilled its duty by summoning the relevant person to present his arguments, but rather, it must hold a fair hearing process, in a manner that affords the person who will be harmed by the decision a suitable opportunity to have his say.

33.       I believe that considering the nature of the authority that is exercised and the violation of the human rights of innocent persons that it may cause, a time period of one working day, and sometimes less than that, to submit an objection is not sufficient. Moreover, the haste with which the procedures were conducted caused additional flaws, such as a mistake in the Arabic wording of the notice that was issued for the house in which Hamed lived.  Even though the mistake in the wording of the order was technical in nature, and it was later corrected in the framework of the decision on the objections, haste in the conduct of procedures of this type is liable to entail serious mistakes that might, on occasion, be irreversible (for an example of a recent mistake in the identification of the house marked for demolition, see: HCJ 7219/15 Abu Jamal v. GOC Home Front Command [22]). Nevertheless, since the Petitioners have had the opportunity to make their arguments before us, and the possibility of supplementing their arguments after the hearing, I do not think that the timetable under discussion in our case ultimately caused a miscarriage of justice (see and cf: the Abu Selim case [15], at p. 573). Therefore, in my opinion, the timetables do not justify  the extreme relief of voiding the orders. Looking to the future, the Respondents must establish reasonable procedures in regard to the relevant dates, including the amount of time for submitting objections.

34.       Several of the Petitioners further argued, as stated, that the Respondents ought to have allowed them to examine the evidentiary material incriminating the relevant suspect, and the engineers’ opinions. As I pointed out, the right to be heard that is accorded to the individual must be fair and appropriate. Therefore, in principle, the authorities should see to providing those involved with the contents of the documents on which their decision relies (regarding the general duties of the authority in connection with holding a hearing prior to making a decision, see: Zamir, at p. 1173; Dafna Barak-Erez, Administrative Law, vol. 1 499 (2010) (Heb). However, there may be circumstances in which this is not possible, for example, for reasons of state security and others (see: ibid., at pp. 506-507). Against this backdrop, the Respondents did well in ultimately submitting to the Petitioners and to the Court those unclassified parts of the confessions of the three suspects in the murder of the Henkin couple, and the confessions of additional persons involved in the murder of Malakhi Rosenfeld. Since the Petitioners were given an opportunity to respond to the contents of this evidence, there are no grounds for intervention in this regard. I will, however, comment that as a rule, the notice of intention to render forfeit and demolish should contain details, albeit minimal, about the evidentiary material that exists against the suspect who lives in the house that is marked for demolition (see and cf. the ACRI case [21], at p. 541).

35.       In my opinion, there are also no grounds warranting intervention in the refusal of the Respondents to allow the Petitioners to examine the engineers’ reports. In the cases before us, in which claims were made about possible damage to the buildings adjacent to the building marked for demolition, the Respondents, in the framework of their decision on the objections and in their responses to the petitions, described the way in which each demolition would be carried out, and explained that an engineer would supervise the demolitions themselves. Hence, the Petitioners were presented with a comprehensive picture of the planned demolitions, and their arguments that the demolition plans remained vague cannot be accepted. In addition, those Petitioners who so wished submitted engineers’ opinions of their own. The Respondents must examine these opinions, if they have not already done so, with an open mind. It may be that in the future, in cases in which, prima facie, an engineering problem arises (such as a case in which the apartment marked for demolition is the middle floor of a building, or a case in which the apartment marked for demolition is in a multi-story building that may collapse), it will be appropriate to describe the way in which the demolition is planned already in the framework of the notice of intention to render forfeit and demolish. At the same time, taking account of the entire set of circumstances of the cases at hand, the fact that the Respondents did not hand over the engineers’ opinions to the Petitioners does not constitute, in my opinion, grounds for intervening in the Respondents’ decision.

And now, from the general issues to the particular questions that arose in the petitions.

 

Deliberation and Decision – Particular Arguments

Decision in the petition concerning the demolition order issued for the home of Ma’ed (HCJ 7084/15)

36.       This petition relates to the forfeiture and demolition order issued for the home of Ma’ed, who together with Abdullah, is suspected of murdering Malakhi Rosenfeld. The suspect’s family, who live in a single-story house that is marked for demolition, petitioned against the order. The petition argued, in particular, that the Respondents have no basis for exercising their authority under Regulation 119 of the Defence Regulations. According to the Petitioners, Ma’ed was not arrested by the authorities in Israel and was not questioned by them. Rather, he is held by the Palestinian Authority.  In any case, he has not been charged in Israel. In these circumstances, the Petitioners argue that Ma’ed’s part in the act attributed to him was not proven. Alternatively, it is claimed that Ma’ed was not a resident of the building marked for demolition. As described in the petition, between the years 2006 and 2010, Ma’ed was in the United States, and after returning from there he married and went to live elsewhere with his wife. In the last year and a half, after divorcing his wife and until his arrest, Ma’ed would come to the house that is the object of the order two or three times a week, but most nights he slept at his workplace. Therefore, the Petitioners request that we order the Respondents to refrain from carrying out the forfeiture and demolition of the building to which the order relates.

37.       The Respondents responded that Ma’ed’s role in the acts is firmly based on administrative evidence, including Abdullah’s confession and the information filed against him. The Respondents also mentioned that they have classified material that also supports Ma’ed’s guilt. According to the Respondents, this evidence constitutes a sufficient evidentiary basis for the purpose of exercising authority under Regulation 119 of the Defence Regulations. As will be recalled, at a later stage, the Respondents attached the confessions of additional persons involved in the shooting attack to the supplementary notice, which link Ma’ed to its perpetration. The Respondents further argued that the facts mentioned by the Petitioners, according to which the suspect slept in the building earmarked for demolition half the week, and that he does not own another apartment, consolidate the required residential link for the purpose of demolishing the building.

38.       The particular questions that relate to the decision on this petition are questions of fact. I will discuss them in order.  According to the provisions of Regulation 119 of the Defence Regulations, the authority it confers may be exercised in relation to a particular building, if the competent authority becomes aware that a resident of that building has committed an offence of the type specified in the Regulation. In this context it has been held that administrative evidence attesting to the fact that an assailant lived in the house marked for demolition suffices (see: Awawdeh [1], para. 25 of my opinion; Sharbati 12], at p. 815). Indeed, “the military commander does not require a conviction by a judicial instance, and he himself is not a court. From his point of view, the question is whether a reasonable person would regard the material before him as being of sufficient probative value” (HCJ 361/82 Hamari v. GOC Judea and Samaria 23], 442; see also: HCJ 802/89 Nisman v. IDF Commander in the Gaza Strip [24], 464; HCJ 897/86 Jabber v. GOC Central Command [25], 524-525 (hereinafter: Jabber); Mughrabi [5], para. 14, per Justice H. Melcer; HCJ7823/14 Javis v. GOC Home Front Command [26], paras. 10-12, per Justice E. Rubinstein).

39.       In the present case, the Respondents had detailed confessions of Ma’ed’s partner, Abdullah, which described Ma’ed’s central role in carrying out the attack. They also had the statements of additional persons who were involved in the planning and execution of the shooting attack: the confession of Amjed Hamad, who said that he purchased the weapon for Ma’ed that had been used in carrying out the attack, and added that Ma’ed told him about his involvement in the act, and the confession of Faid Hamed, who took part in organizing the terrorist cell for the attack, and he too provided details of Ma’ed’s part in it. On the other hand, no argument was raised by the Petitioners relating to the claims of his partner Abdullah or to the claims of the other people involved. In these circumstances, the material that was presented to us is sufficient to serve as an administrative evidentiary basis for the exercise of the authority (see and cf: the Jabber case [25], at pp. 524-525, and the references there). In view of the above, in my opinion no weight should be attributed to the fact that Ma’ed is held by the Palestinian authority and has not yet been interrogated in Israel (see and cf.: HCJ 2418/97 Abu Farah v. IDF Commander in Judea and Samaria [27]).

40.       I also found no substance to the claim that Ma’ed did not live in the building marked for demolition. For the purpose of exercising authority under Regulation 119 of the Defence Regulations, it must be shown that the terrorist was a “resident” or “inhabitant” of the building marked for demolition (see: HCJ 6026/94 Nazal v. IDF Commander in Judea and Samaria [28],  343-344 (hereinafter: Nazal); HCJ 893/04 Faraj v. IDF Commander in the West Bank [29], 6-7 (hereinafter: Faraj)). According to the case law, a person’s absence from his residence does not necessarily sever the required residential connection. This depends on the nature of the absence and the concrete circumstances of the case (see: Nazal, at pp. 343-344). Thus it was found, for example, that a terrorist’s residence in a boarding school during his studies did not sever his connection to his parents’ home (HCJ 454/86 Tamimi v. Military Commander in the West Bank [30]). This also applied in another case in which the terrorist would often come home to change his clothes and stock up on food (HCJ 1245/91 Fukhah v. Military Commander in the West Bank [31]; and see also cases in which it was ruled that the absence of a terrorist from his home due to the fact that he was fleeing from the security forces does not sever the residential link: see Nazal; Faraj). On the other hand, this Court intervened in the decision of the military commander to demolish the home of the terrorist’s uncle, because it was found that his father’s home was, in fact, the permanent residence of that terrorist (HCJ 299/90 Nimmer v. IDF Commander in the West Bank [32], 628). In the present case, there is no dispute that the suspect usually stays part of the week in the family home that is earmarked for demolition, and in any case no convincing evidence was presented attesting that he has any other permanent residence (see and cf: HCJ 350/86 Elzak v. Military Commander in the West Bank [33]; Jabber, at p. 525). There are, therefore, also no grounds for our intervention in this regard.

 

Decision in the petitions concerning the demolition order issued for the home of Abdullah (HCJ 7040/15, HCJ 7077/15, HCJ 7180/15)

41.       The order that was issued for the home of Abdullah, Ma’ed’s partner, relates, as noted, to the apartment on the top floor of an eight-story building in Silwad. Three separate petitions were submitted against this order. The first petition (HCJ 7077/15) was filed by the brother and sister of the accused, who reside in the apartment marked for demolition. That petition specifically argued that the apartment to be demolished is leased from a third party, who is not related to the family and who also knew nothing of the intentions of the accused. At the hearing before this Court, counsel for the Petitioners added that according to the lease agreement, this is a short-term lease which can be renewed (or terminated) on an annual basis. In view of this, the Petitioners argued that demolition of their home will not be a deterrent to the perpetration of terror attacks, and it must be revoked. In addition, it was argued that there is a defect in exercising the authority some four months after the perpetration of the attack to which the order relates, and that the Respondents must take into consideration the damage that is likely to be caused to adjacent buildings.

42.       The second petition (HCJ 7040/15) was submitted by the owner of the building who leased the apartment marked for demolition to Abdullah’s mother. This petition argued that demolition of the building owned by the Petitioner, who is a third party with no familial or other relationship to the terrorist or his family, causes serious damage to his property, amounting to collective punishment, and will entail harm to other innocent inhabitants.

43.       The third petition (HCJ 7180/15) was submitted by the inhabitants and lessees of a building in which the apartment marked for demolition is situated. In the framework of the petition, the Petitioners complained that they were not given the opportunity to see the engineers’ opinions on the basis of which the demolition would be carried out, or the evidence against the accused, and they argued that the Respondents should at least undertake to compensate them if their apartments are damaged as a result of the demolition.

44.       In their responses to these three petitions, the Respondents initially argued that the demolition order could be carried out despite the fact that Abdullah’s apartment is leased. The Respondents argued that according to the case law, the proprietary status of a terrorist as owner or lessee does not prevent exercise of the authority. The Respondents further argued, from the point of view of proportionality, that they considered the argument that the building is not owned by the accused or his family, but were of the opinion that despite this fact, it was necessary to deter potential terrorists from carrying out attacks. As for the way in which the demolition would be effected, the Respondents explained that it would be done from within the apartment, by means of drilling and blasting in some of the pillars and external walls. According to the Respondents, the anticipated result is that some of the internal walls in the apartment will be destroyed, and that only the south-eastern part of the apartment will collapse. The Respondents stressed that at the time of the demolition, an engineer will be present on location and will supervise the execution, and that no damage to the adjacent buildings is anticipated as a result of this action. As for the undertaking to compensate the neighbors in advance for incidental damage, the Respondents cited the Cedar case [18], which held that it may be possible for the neighbors to sue for compensation, considering the relevant circumstances. In the supplementary notice, the Respondents explained that subject to certain conditions specified above, they agree, beyond the letter of the law, to repair any damage caused to adjacent buildings or to provide compensation therefor. Regarding the passage of time since the perpetration of the attack and until the issuing of the order, the Respondents argued that exercise of the authority under Regulation 119 of the Defence Regulations is determined according to the particulars of time and place, and it is a matter for the discretion of the competent authorities.

45.       After considering the arguments of the parties, I have reached the conclusion in regard to the home in which Abdullah lived, that the decree nisi issued in the petition of the owner of the building (HCJ 7040/15) should be made absolute, due to the weak link between the terrorist and his family and the apartment that is marked for demolition, and also due to the lack of a basis for the conclusion that demolition of the home has a potential to deter potential attackers in such circumstances. As stated above, according to the language of Regulation 119 of the Defence Regulations, it is sufficient if the terrorist is a “resident” or “inhabitant” of the house marked for demolition. As a logical outcome of this, the case law has determined that the authority under Regulation 119 of the Defence Regulations may be exercised as long as a “residential link” exists between the terrorist and the house. Hence it was ruled, inter alia, that as formulated, the Regulation allows an order to be issued to demolish the house that a terrorist was renting (see HCJ 542/89 Aljemal v. IDF Commander in Judea and Samaria [34] (hereinafter: Aljemal); see also: HCJ 1056/89 Alsheikh v. Minister of Defence [35] (hereinafter: Alsheikh); HCJ 869/90 Lafrukh v.IDF Commander of the Judea and Samaria Area – Beit El [36] (hereinafter: Lafrukh); HCJ 3567/90 Sabar v. Minister of Defence [37] (hereinafter: Sabar); HCJ 3740/90 Mansour v. IDF Commander in Judea and Samaria [38]; Abu Halaweh [16]).

46.       The authority therefore exists in this case as well. Nevertheless, as is well known, judicial review of the decision of the Respondents does not end at the level of authority. The discretion in exercising the authority must also be examined, in light of the circumstances of the case and taking into account the criteria of proportionality. According to these criteria, there must exist, inter alia, a rational connection between the purpose and the measures that are adopted. As explained above, this Court ruled in a number of cases that the purpose of demolishing the homes of terrorists is not to punish their families, but to deter potential terrorists who are liable to refrain from carrying out terror attacks if they know that by perpetrating these acts they are endangering their homes and those of their families. At the same time, I seriously doubt whether, in the circumstances of the present case, demolition of Abdullah’s apartment will act as a deterrent to the perpetration of acts of terror. I will explain. As will be recalled, the Respondents presented us with classified information that, in principle, supports the claim of deterrence. However, the classified material contains no indication that the demolition of a house owned by an unrelated third party – who has no familial or other relationship to the terrorist or his family, and where almost no economic harm ensues to the terrorist or his family – helps in deterring potential terrorists (and cf. the circumstances of the Awawdeh case [1], which are different from the present case. There, the terrorist leased an apartment from his brother). This, as opposed to evicting the family of the terrorist from the apartment. A judge has only what he sees before him. The most recent decision of this Court in the case of HaMoked Defence Center required, as noted, an examination of the effectiveness of deterrence. The material that was submitted to us does not indicate effectiveness in a case such as the one under discussion. Accordingly, the case before us differs from other cases that were discussed in the decisions of this Court.

47.       What we have said above is inextricably related to the concrete circumstances of the case: the mother of the accused Abdullah rented the apartment under an agreement that is renewed annually, and which according to its terms, is due to expire this coming September. The agreement was submitted in Arabic, and we had it translated. According to the agreement, the family paid for the house one year in advance, and no more than that. In such circumstances, most of the damage caused by the demolition will fall on the lessor, and not on the accused and his family. Therefore, it would seem that the assumption that carrying out the demolition in this case will deter potential terrorists is problematic. Moreover, I seriously doubt whether it can be assumed – with no basis in any material – that a lessor who is an outsider has any influence over the decisions of a terrorist. One way or another, the Respondents also did not argue that demolishing the home of a third party is liable to incentivize lessors to take steps that will deter their tenants from carrying out acts of terror.

48.       Thus, in the present case, the Respondents did not show a rational connection between the deterrent purpose and demolishing the house that is the subject of the petition. Furthermore, in accordance with the criteria of proportionality, it must be established that a proper relationship exists between the benefit of the measure that is adopted and the harm (the criterion of proportionality “stricto sensu”). In this framework, a balance must be struck between “[…] the gravity of the terrorist act and the scope of the sanction, between the anticipated harm to the family of the assailant and the need to deter future, potential assailants; between the basic right of every person to his property and the right and duty of the government to maintain security and public order” (HCJ 6299/97 Yassin v. Military Commander in the Judea and Samaria Region [39], para. 13, per President A. Barak; See also: Yoram Dinstein, The Israel Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing Off of Houses 29 Isr. Y.B. Hum. Rts. 285, 297 (1999)). When doing so, the residential link of the terrorist and the building, as well as the effect on other people of exercising the authority, must be weighed. In view of these criteria, in all the past cases dealing with the demolition of premises rented from a third person, the competent authorities adopted the sanction of sealing off, rather than demolishing the house. It should be emphasized that sealing off is reversible, and it may be cancelled in the course of time, in view of the provision at the end of Regulation 119(1) that allows for remission (see in particular the cases of Aljemal; Alsheikh; Lafrukh; Sabar; Mansour; Abu Hilweh; cf. the measure of sealing off with concrete adopted in other cases (that did not involve rental): HCJFH 11043/03 Sharbati v. GOC Home Front Command [40]). In our case, beyond the fact that there is no rational connection between demolishing the apartment and the deterrent purpose, the required deterrence can be achieved by evicting the family from the apartment and sealing it off for a limited period. Indeed, in the present case, the owner of the building suggested, on his own initiative, to evict the family of the terrorist from the apartment, and even agreed to it being sealed off for a certain period (see: the response of the Petitioner in HCJ 7040/15 of Nov. 5, 2015). The Respondents, on their part, objected to the Petitioner’s proposal. They argued that alternatives to demolition had been examined, but were not practical. The Respondents’ handling of this issue is generalized, and contains no explanation of why – in a case in which the main harm will be caused to a third party who is not in any way connected to the terrorist who has little connection to the building – it would be justified to adopt the extreme sanction of demolition.

49.       Therefore, in my opinion, we should order that the demolition order issued in regard to Abdullah’s home be rescinded, while requiring the Petitioner in HCJ 7040/15 to carry out his proposal to evict the family of the accused from the apartment by Nov. 17, 2015 at 12:00. The Respondents argued that sealing off is not possible, and therefore it is sufficient to evict the family from the apartment. I would stress that my intention is not to determine that it will not be possible to adopt the measure of demolition in every case in which a terrorist lives in a rental apartment. My conclusion is limited to the concrete circumstances of the case, in which this measure, in the whole set of circumstances that were described, cannot be regarded as proportionate.

50.       As for the argument of delay raised by the family of the accused in their petition (HCJ 7077/15), recently, this Court ruled in the Cedar case that, in principle, the date for carrying out the demolition of terrorists’ homes is a matter for the discretion of the competent authorities (see and cf. also: HCJ 4747/15 Abu Jamal v. GOC Home Front Command [41]). Nevertheless, a decision on this matter, too, is subject to the familiar criteria of reasonableness and proportionality (Cedar [18], para. 7, per Deputy President E. Rubinstein). In practice for the present case, the forfeiture and demolition order that is the subject of the petition was issued – according to its wording – “because the inhabitant of the house, Abdullah Munir Salah Ashak […] murdered, on June 29, 2016, the late Malakhi Rosenfeld and wounded three others.” However, the precise timing of the execution of the order derives from the circumstances of time and place i.e., the recent rise in the number of attacks (see: decision of the Respondents to the objection of the Petitioners of Oct. 19, 2015). On this basis, it can be determined that the decision to demolish was made as a direct result of the perpetration of the attack by Abdullah, taking into account the grave security situation and the need for deterrence. In my opinion, there is nothing wrong with this (but cf.: the dissent of Justice U. Vogelman in the Cedar case; dissent of Justice D. Dorner in HCJ 1730/96 Salem v. IDF Commander [42] 364 (hereinafter: Salem)). Indeed, as a rule, notice of the intention to render forfeit and demolish a house should be given close to the time of the attack (see: Cedar, para. 7 per Deputy President E. Rubinstein). However, considering the whole set of circumstances, including the fact that the information against Abdullah was filed on Aug. 17, 2015, the argument of delay is not relevant here (and see also:  Cedar (in which the notice of the intention to demolish was given some seven months after the attack occurred); Salem (after the passage of four months); Alsheikh (five months); HCJ 228/89 Aljemal v. Minister of Defence [43], (in which over a year elapsed between the time of the attack and the issuing of the order); I will mention that in HCJ 6745/15 Abu Hashia v. Military Commander in the West Bank [44], a decree nisi was recently issued in a petition concerning a demolition order that was issued about eleven months after the attack (Deputy President E. Rubinstein and Justices Z. Zylbertal and M. Mazuz, decision of Oct. 29, 2015))[1].

In their petition, the family of the accused also raised an argument concerning the damage that was liable to be caused to the adjacent apartments. Having held, as explained above, that intervention the Respondents’ decision in this case is justified, this argument no longer has any bearing. The same applies to the petition of the neighbors (HCJ 7180/15), which also focused on the damage likely to be caused to buildings adjacent to the apartment marked for demolition. I would emphasize that these petitions, per se, should be denied. But granting the petition of the owner of the building (HCJ 7040/15) has practical implications for these petitions.

Decision in the petitions concerning the demolition order issued for the home of Hamed (HCJ 7076/15 and HCJ 7085/15)

51.       In the case of Hamed, the suspect in the murder of the Henkin couple, a forfeiture and demolition order was issued for the two middle floors of a four-story building in the area of Askan Rujib in the city of Nablus. As will be recalled, two petitions were filed against the order. The first petition (HCJ 7085/15) was filed by the family of the suspect who live together on the floors marked for demolition. In the framework of this petition, the Petitioners argued that the suspicions against the three people involved – Kussa, Rizek and Hamed – had not yet been proven. According to them, as long as their interrogation was not complete and no charges had been filed or decision rendered in relation to any of the three in court, there is no justification for ordering the demolition of their homes. In addition, the Petitioners argued that Hamed is renting the second floor from his mother, Petitioner 2, and that for this reason too, there should be no demolition. Alternatively, the Petitioners argued that the intention of the Respondents to destroy two apartments that are situated on two different floors, when the suspect did not live on the floor on which the Petitioners lived, renders the decision disproportionate. Alternatively, the Petitioners asked that we order the Respondents to refrain from carrying out the demolition by means of blowing up the house.

52.       The second petition (HCJ 7076/15) was filed by the suspect’s brother, who lives with his family on the ground floor of the building that is the object of the order, and by the owners of the properties adjacent to the building. This petition argued, on the basis of the engineers’ opinion attached to it, that the planned demolition will cause structural damages to the adjacent building. Finally, the Petitioners contended that the formulation of the order in Arabic was flawed in that it said that the Respondents’ intention was to demolish the ground floor, whereas the Hebrew version referred to the first and second stories of the building.

53.       In response, the Respondents claimed that they are in possession of information indicating the involvement of Hamed in carrying out the attack to which the order relates. Later, after being asked to do so, the Respondents attached the confessions of the suspects in the Henkin murders, including the confession of the suspect Hamed, to the supplementary notice. To ground the residential connection of the suspect to the two stories of the building, the Respondents attached a document entitled “Summary of the Mapping of the House of the Terrorist Yehieh Haj-Hamed in Askan Rujib in Nablus Oct. 6, 2015” (hereinafter: mapping summary) to the supplementary notice.  According to this document, the suspect’s family lived on the first floor, whereas the second floor belonged to the suspect himself and is in the final stages of construction. According to the Respondents, in these circumstances there is justification for demolishing the two stories of the building. As for the question of safety and the method of demolition, the Respondents noted that the demolition plan had been prepared by professionals who are qualified engineers, with an attempt to prevent, insofar as possible, damage to the adjacent buildings or to parts of the building that are not marked for demolition. As for the method of demolition, the Respondents explained that use would be made of controlled explosions, e.g., small explosive charges, in order to create a shock that would render the stories unusable. The Respondents further stressed that at the time of the demolition, an engineer would be present, supervising all the stages, and in any case, it is not expected to cause structural damage. In their response, the Respondents did not refer to the argument of the Petitioners in HCJ 7076/15 that the Respondents should undertake to compensate the Petitioners for incidental damage caused to their apartments as a result of the demolition. However, in the supplementary notice, the Respondents noted, as stated, that if adjacent buildings  are damaged as a result of negligent planning or execution of the demolition of the building, the State agrees, beyond the letter of the law, to repair the building or to compensate its owners, subject to the terms specified in the notice.

54.       In their responses to the supplementary notice, the Petitioners complained, inter alia, that the mapping summary was not made available for them prior to the date set for filing the objection. They also pointed out substantive differences between the description of facts in the response and the description of facts in the mapping summary. Thus, for example, whereas the Respondents wrote that the suspect Hamed often sleeps in his new apartment (on the second floor), in the mapping summary this fact was not mentioned. In view of this, the Petitioners argued that no weight should be attributed to this document, and in any case, it cannot be considered credible, convincing evidence. It was also argued that “[…] the fact that the suspect would stay in the apartment of his family and his parents below part of the time is only natural and understandable, and it does not negate his residence in his apartment above […].”Accordingly, the Petitioners asked that we order the Respondents, at very least, to refrain from demolishing the first floor, in which the family of the suspect lives.

55.       After considering the arguments of the Petitioners on the one hand, and those of the Respondents on the other, my opinion is that there are no grounds for our intervention in the decision of the Respondents to render forfeit and demolish the two floors in which Hamed lived. I will first address the factual basis. The Respondents were in possession of detailed confessions of the three suspects in the murder of the Henkin couple, each of which was consistent with the others. In accordance with the criteria laid down in the case law, which I discussed earlier, these confessions constitute a sufficient evidentiary basis. Even the Petitioners did not really dispute this, even though they were given an opportunity to raise arguments on this matter.  Therefore, there is an evidentiary basis for exercising the Respondents’ authority in the said case. As for the Petitioners’ argument according to which Hamed lived only on the second floor of the building, in my opinion, the mapping done by the Respondents, which relied on a survey of the premises and questioning of the family by the ISA coordinator, is sufficient in order to determine Hamed’s connection to both floors (see and cf.: Mughrabi [5], paras. 17-19 per Justice H. Melcer). Therefore, there are no grounds for our intervention in this regard, as well.

The Petitioners also objected to the process of issuing the forfeiture and demolition order, and emphasized the mistake in the wording of the order in Arabic. As was noted earlier, there was indeed a mistake in the order in Arabic. This mistake resulted from the haste in the process of issuing the orders. Let me emphasize once more that the Respondents must be meticulous in their conduct of a fair process, and in giving all those involved a proper opportunity to make their arguments. At the same time, once the said error in the wording of the order was corrected, there is no flaw that would justify ordering the cancellation of the forfeiture and demolition order.

In the present case, the argument about rental, too, cannot be accepted, in my opinion. Unlike the case of HCJ 7040/15 – in which, in my opinion, the forfeiture and demolition order should be revoked for the reason that the lessor there was an “unrelated” third party – in the present case, the apartment was leased from a family member, namely, the suspect’s mother. As for deterrence, there is no real difference between a case in which the terrorist lives with members of his family in a property owned by them, and a case in which the terrorist rents a property from a family member.  In both cases, the economic harm to the family of the terrorist is significant. Hence, a potential terrorist’s awareness of the possibility that his apartment or the apartment of his family will be demolished is liable to deter him from carrying out terror attacks.

56.       And now to the claim for compensation. As stated above, over the years this Court has narrowed the scope of Regulation 119 of the Defence Regulations, and held that the competent authorities must exercise reasonable discretion in its implementation. As will be recalled, we ruled that according to the material before us, and correct as of this time, the demolition of homes has the potential for creating deterrence. However, the demolition must still be proportionate. In this framework, there are different considerations that the competent authorities must take into account before deciding to exercise their authority. Inter alia, they must establish whether it is possible to demolish the residential unit of the terrorist without damaging other parts of the building or neighboring buildings, but “if it emerges that this is not possible, then settling for sealing off the relevant unit must be considered” (Salem [42], at p. 360). Thus,  the damage that is liable to be caused to adjacent properties is among the relevant considerations regarding the demolition of a particular property. The reason for this is that incidental damage to innocent persons impacts on the proportionality of the demolition. As was stated in the Alamrin case:

                      … it is inconceivable that the military commander should decide to destroy a complete multi-story house, which contains many apartments belonging to different families, merely for the reason that a person suspected of a terrorist act lives in a room in one of the apartments, and if nonetheless he should want to do this, this court could have its say and intervene in the matter. (HCJ 2722/92 Alamrin v. IDF Commander in the Gaza Strip [45], 699).

In view of these principles, the Respondents must fulfill their obligation to ensure that there is professional supervision of the execution of the demolition, and consider the opinion submitted by the Petitioners with an open mind. In the present case, too, the Respondents made it clear that a qualified engineer would supervise the demolition, and that they do not wish to cause structural damage to adjacent buildings. These undertakings of the Respondents are appropriate, and care must be taken to fulfill them. However, this does not exhaust the Respondents’ duty to act with proportionality. When innocent third parties, who are not related to the terrorist and did not know of his intentions, are liable to be harmed by the demolition, I would recommend to my colleagues that the demolition should be conditional upon repairing incidental damage or compensating for it, even if such damage is not the result of negligence on the part of the Respondents. I will explain.

57.       In the framework of the criteria of proportionality, we must be satisfied that the relationship between the proper purpose of the measure adopted and the violation of rights caused as a result of its use is proper (proportionality “stricto sensu”). This is a value-oriented criterion that is based on a balance between competing values and interests. Above, I discussed the serious harm that may be caused by the measure of demolition of homes to those who have done nothing wrong. This harm is all the more serious when it is caused to innocent third parties who are not connected to the terrorist, and whose only crime is their proximity to his place of residence. In my opinion, bearing in mind the need to balance the benefit gained against the harm it causes, the demolition ought to be conditional upon the repair of or compensation for harm caused to innocent third parties. Without this condition, we cannot say that the demolition is proportionate. In the past, the State did indeed undertake to repair incidental damage or pay compensation for it. Thus, for example, the State undertook to repair damage caused to floors adjacent to the floor marked for demolition (HCJ 2006/97 Ghanimat v. GOC Central Command [46], 653). In other cases, the State promised that if, despite efforts to prevent damage to adjacent buildings during the demolition, such damage is caused, compensation will be paid to those affected (see: Salem, at p. 363; HCJ 6932/94 Abu Elrob v. Military Commander of the Area of Judea and Samaria [47]; see also: HCJ 8124/04 Al-Jabari v. IDF Commander in the West Bank [48] (undertaking of the State to refrain from demolition if the adjoining floor would be damaged); see and cf. also: HCJ 4112/90 Association for Civil Rights in Israel v. GOC Southern Command [49],  631 (undertaking of the State to compensate owners of property damaged due to military needs)). In effect, in our case too, the Respondents do not strenuously oppose the repair of or compensation for incidental damage, but they attach several conditions to which the Petitioners objected in their responses to the supplementary notice. According to the Respondents, they are required to repair or compensate for damages caused by the demolition only in the event that the planning or execution were negligent, and subject to the opinion of an appraiser on their behalf and to a string of additional conditions: the flaw in the demolition of the building did not result from disturbances of the peace; the owners of the building did not receive compensation, restitution or any form of participation in the damage from the Palestinian Authority or from another body; the injured party is not a national of an enemy state nor active in or a member of a terrorist organization, or anyone on their behalf (sec. 5B of the Civil Damages Law).

58.       In my opinion, there is generally no room for limiting in advance the duty of the Respondents to pay compensation to third parties who are not relatives of the terrorist to cases of negligence in planning or execution or other conditions. On the contrary, the default position must be that compensation will be paid or damage repaired (on the need to compensate innocent parties even when the action was lawful, see and cf.: HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [50],  573 (hereinafter: Public Committee Against Torture); HCJ 2056/04 Beit Sourik Village Council v. State of Israel [51], 831 (hereinafter: Beit Sourik); on the obligation to pay compensation for breach of a constitutional right in general, see: CA 7703/10 Yeshua v. State of Israel – SELA Administration [52], paras. 20-34 of my opinion). I do not rule out the possibility that, in exceptional circumstances, the Respondents will not be required to pay compensation. However, as stated, I do not think that the exceptional cases in which the Respondents will be exempt from doing so should be determined in advance. I am not unaware of the recent judgment of this Court in the case of Qawasmeh [2], whereby the obligation to pay compensation is hypothetical as long as no damage has actually been caused:

                      In addition, I did not find it appropriate to discuss the Petitioners' request that the Respondent would undertake to compensate the injured parties should the demolition cause damage to adjacent properties. This is a hypothetical argument which should be heard, if at all, only in the event such damage is caused as aforesaid, and by the competent instances. (ibid., para. 11 per Justice Y. Danziger).

Indeed, it is only natural that if no incidental damage is caused as a result of the demolition, no duty of compensation to innocent parties will arise. At the same time, however, in my opinion it is important to clarify already at this stage – and I do not believe that this contradicts what was said in the Qawasmeh case – that the rule must be compensation or repair, and only in exceptional cases will it be justified to refrain from doing so. Ultimately, minimization of the damage that is caused as a result of the demolition to persons who are not connected to the terrorist, whether by way of compensation for the damage caused to their property or whether by some other means such as repairing the damage that was caused, is essential for compliance with the requirement of proportionality. This, as we have said, also applies in a case in which the Respondents acted lawfully and within their area of competence (see and cf.: Public Committee Against Torture [50], at p. 573). Similarly, even when the Military Commander seizes land for a military purpose, he is required to pay compensation (on this see, e.g.: Beit Sourik, at p. 831; HCJ 24/91 Timro v. IDF Commander in the Gaza Strip [53], 335; see also: Eyal Zamir, State Lands in Judea and Samaria – Legal Survey, 12 Mehkerei Yerushalayim le-Heker Yisrael 12 (1985) (Heb.). This is even more essential if the Respondents were negligent in the planning or execution of the demolition. In any case, it is clear that when the owner of an adjacent property can claim negligence on the part of the State, the door is open for an action in torts (see: Cedar, para. 9 per Deputy President E. Rubinstein; Qawasmeh, para. 11 per Justice Y. Danziger; see and cf., regarding damage cause to property inside the property that is the object of the demolition: HCJ 5139/91 Zakik v. IDF Commander in the West Bank [54], 263-264; HCJ 3301/91 Bardaiya v. IDF Commander in the West Bank [55]).

59.       Therefore, in my opinion, we should not intervene in the demolition decision, but we should hold that if damage is caused, the Respondents must repair it or compensate the injured parties who are not family members of the terrorist, subject to their right to apply to a competent court for a declaratory judgment that they are exempt from doing so in the circumstances of the case.

Decision in the petitions concerning the demolition order issued for the home of Rizek (HCJ 7079/15 and HCJ 7082/15)

60.       In the case of Rizek, the partner of Hamed and Kussa, an order was issued in regard to the apartment in which he lived together with members of his family. This was, as will be recalled, an apartment on the second floor of a three-story building.  As aforesaid, two petitions were filed against this order. The first petition (HCJ 7079/15) was filed by members of Rizek’s family, whereas the second petition (HCJ 7082/15) was brought by neighbors and inhabitants of buildings adjacent to the apartment marked for demolition. Similar to Hamed’s case, these petitions also argued that the suspicions against the three persons involved, including Rizek, had not yet been proven, and that the Respondents should have given the Petitioners the evidentiary material on which the order under discussion was based. This argument must be dismissed. As in the case of Hamed, in Rizek’s case, too, the Respondents were in possession of a detailed confession that constitutes a sufficient evidentiary basis for exercising the authority.

61.       In addition, it was argued – based on an opinion submitted by the Petitioners – that demolition of Rizek’s apartment was liable to cause structural damage to the apartments in the building and to adjacent buildings. The Respondents, on their part, insisted upon the method of demolition, explaining that this would be done by means of drilling and blasting inside the apartment and in the walls on the northern and western faces of the building, and by means of breaching charges that would be activated on the north face. All this, in order to prevent damage to the other apartments in the building and the adjacent buildings. The Respondents further declared that it was anticipated that the demolition method described would allow for the destruction only of the external walls (other than the preserved faces) and the interior dividing walls of the apartment, without causing structural damage to the adjacent buildings and to the other floors of the building. As I mentioned in regard to the other petitions, we noted these undertakings of the Respondents, which are appropriate. Therefore, these petitions should be denied.

Decision in the petitions concerning the demolition order issued for the home of Kussa (HCJ 7087/15 and HCJ 7092/15)

62.       In the case of Kussa – Hamed and Rizek’s partner – a forfeiture and demolition order was issued for the apartment in which he lived with members of his family. This is an apartment on the ground floor of a three-story building. Two petitions were filed against this order, too. The first petition (HCJ 7087/15) was filed by Kussa’s wife, who lives in the apartment marked for demolition. Similar to the petitions of the other suspects in the murders of the Henkin couple, this petition, too, argues that the suspicions against the three, including Kussa, are unfounded. Like my rulings in the matter of Hamed and Rizek, here, too, the argument regarding the evidentiary basis should be dismissed, inasmuch as the Respondents had Kussa’s detailed confession to the deed, which constitutes a sufficient evidentiary basis for exercising their authority.

The second petition (HCJ 7092/15) was filed by the suspect’s sister-in-law, who lives on the second floor, and his brother, who lives on the third floor. In this petition, the Petitioners argue that they have a vested right to know how the Respondents intend to carry out the demolition, and if their apartments are expected to be damaged as a result. It is further argued that the Military Commander does not have the authority to employ the sanction of demolition in Area A. The Petitioners therefore asked, inter alia, that we order the Respondents to undertake to refrain from causing any direct harm or damage to the Petitioners’ residence.

63.       These arguments by the Petitioners should be dismissed. First, we should stress that the Respondents cannot be obligated in advance to refrain from causing damage to the building, as this would effectively mean preventing the demolition. Neither have I found substance in the Petitioners’ arguments concerning the authority of the Military Commander in Area A. According to the Israeli-Palestinian Interim Agreement in the West Bank and the Gaza Strip (hereinafter: Interim Agreement), the authority over internal security and public order in Area A were, indeed, transferred to the Palestinian Authority. However, the Agreement also explicitly specified that Israel would continue to carry responsibility for defense against external threats and for the overall security of Israelis in the area of Judea, Samaria and Gaza, and for this purpose it would have “all the powers to take the steps necessary to meet this responsibility” (sec. XII(1) of the Interim Agreement). This means that Israel is authorized to continue operating in Area A when this is required for general security. Therefore, the competence of the Respondents to implement Regulation 119 of the Defence Regulations in this area is consistent with the provisions of the Interim Agreement (see: Qawasmeh, para. 28 per Justice Y. Danziger; see also: Joel Singer, The Israeli-Palestinian Interim Agreement Concerning Self-Government Arrangements in the West Bank and in the Gaza Strip – Several Legal Aspects, 27 Mishpatim 605, 622 (1996) (Heb.)).

64.       Moreover, after the Interim Agreement was signed, the Military Commander issued a special order for the implementation of the Agreement – “Proclamation on Implementation of the Interim Agreement (Judea and Samaria) (no. 7) 5756-1995” (hereinafter: Proclamation). This Court ruled that the Proclamation, and not the Interim Agreement, is the prevailing law in the Area, and the provisions of the Interim Agreement apply only if they were adopted in the Proclamation:

                      […] the Proclamation is the law. It determines who has the authority and what is the authority with respect to a particular matter in any particular area. The Proclamation – and not the Interim Agreement. The Interim Agreement is the historical source of the Proclamation, but it is not its source of validity. Therefore, even if there is a difference between the provisions of the Proclamation and those of the Interim Agreement, and even if they are contradictory, the provisions of the Proclamation prevail. The provisions of the Interim Agreement are part of the law that applies in Judea and Samaria only if they are adopted, and to the extent that they are adopted, by the Proclamation (HCJ 2717/96 Wafa v. Minister of Defence [56], 853).

The Proclamation states, inter alia, that the law that applied in the Area on the day that it entered into force will remain in force as long as it is not repealed, changed or suspended in accordance with its provisions (see: sec. 7 of the Proclamation; HCJ 7607/05 Abdullah (Hussein) v. IDF Commander in the West Bank [57], para. 7, per President A. Barak ). Regulation 119 was not repealed, and it therefore remained in force even after the Proclamation entered into force. The Proclamation further provided that the decision of the Military Commander that certain powers and areas of responsibility remain in his hands is “conclusive and final” (sec. 6 of the Proclamation). From the provisions of the Proclamation it emerges, therefore, that the Military Commander may operate in Area A, particularly when this is required for the sake of maintaining security, as in our case. In view of the aforesaid, this petition, too, must be denied.

Decision in the petition concerning the demolition order issued for the home of Abu Shahin (HCJ 7081/15)

65.       This petition, as will be recalled, concerns the demolition order issued for the house of Abu Shahin, who is accused of the murder of Danny Gonen. The apartment is on the top floor of a three-story building. The Petitioner, a relative of the accused who claims ownership of the apartment marked for demolition, raised several specific arguments: first, the Petitioner argued, on the basis of an engineer’s opinion brought on her behalf, that carrying out the demolition is liable to damage the adjacent apartments in the building. Therefore, the Petitioner asked that we order the Respondents to refrain from carrying out the planned demolition. In addition, the Petitioner argued that there had been administrative delay, in that the power was exercised some four months after the date on which the relevant attack was carried out. Finally, the Petitioner mentioned that the accused and his family only hold the status of lessees in the apartment marked for demolition.

66.       The Respondents argued in response that in view of the fact that the acts of terror had not ceased, the need for general deterrence remained as it had been at the time of perpetration of the attack that was the subject of the order. The Respondents argued that decisions regarding the implementation of Regulation 119 of the Defence Regulations are made in accordance with the particular circumstances of time and place, and there are, therefore, no grounds for intervention in the current order. Regarding the argument about the accused and his family being tenants in the apartment marked for demolition, the Respondents reiterated their position whereby that fact does not constitute a bar to demolition. As for the question of the safety and the manner of demolition of the building, the Respondents noted that due to the location of the apartment within the apartment block, it was decided that demolition would be by way of controlled explosive demolition, and that an engineer would be present during the demolition and would supervise its execution. In the supplementary notice, the Respondents added that various possible alternatives had been examined and found unsuitable.

67.       After examining the arguments of the parties, there are no grounds, in my opinion, for intervening in this case either. The Petitioners argued that there was a delay in issuing the forfeiture and demolition order. In this case, the forfeiture and demolition order that is the subject of this petition was issued – as it states – “because the inhabitant of the house Muhammed Abu Shahin […] murdered Danny Gonen in cold blood by means of pistol fire, and wounded another person […].” Together with this, the exact timing of executing the order derives from the circumstances of time and place, i.e., the recent rise in the number of attacks (see: the decision of the Respondents on the objection of the Petitioner of Oct. 19, 2015)). Therefore, similar to my above ruling in relation to the timing of the issuing of the order in the case of Abdullah, in the present case, too, the decision regarding demolition was made as a direct result of the perpetration of the attack, taking into account the difficult security situation and the need for general deterrence. As I have already mentioned, notice of intention to render forfeit and demolish a house should, as a rule, be given close to the time of the attack (see: Cedar, para. 7 per Deputy President E. Rubinstein). Nevertheless, considering the entire set of circumstances of the matter, including the fact that the information against Abu Shahin was also filed on Aug. 18, 2015, the argument of delay cannot be accepted in this case. Neither can the argument about tenancy be accepted, in my opinion. This case is similar to the circumstances of HCJ 7085/5 which is before us, dealing with an apartment leased from a family member. The present case, as will be recalled, treats of a building that the accused leased from a relative (whether it was the accused’s grandfather, as the Petitioners claim, or his uncle, as the Respondents claim). As I mentioned above, in this case there are no grounds for our intervention.

68.       Regarding the question of safety and the manner of demolition of the building, as will be recalled, the order refers only to the top floor of a three-story building. In the framework of the decision on the Petitioner’s objection, the Respondents explained that the plan for demolition of the apartment was drawn up by qualified engineers, “after carrying out an accurate mapping of the apartment and taking into consideration the engineering features and its location.” This was done “bearing in mind the need to avoid, insofar as possible, damaging neighboring buildings or parts of buildings that are not marked for demolition, i.e. the lower floors of the building.” In addition, the Respondents declared that the demolition would be carried out under the supervision of an engineer, who would ensure that all measures were taken to prevent incidental damage. As I pointed out, these undertakings are justified, and care must be taken to fulfill them. In these circumstances, I am of the opinion that there are no grounds for ruling that the planned demolition is not proportionate.

In Conclusion

69.       If my opinion is accepted, the petitions before us should be denied, except for the petition of the owner of the eight-story building in Kfar Silwad (HCJ 7040/15). That petition is granted, subject to the owner ensuring that the family of the accused leave the apartment by Nov. 17, 2015 at midday. In addition, the Respondents must act in accordance with the principles that we have laid down in the judgment concerning the mode of conduct of the hearing process and its fairness, and concerning the repair of damage that is liable to be caused to third parties as a result of the demolition, or providing compensation for such damage.

70.       Under the circumstances, there will be no order for costs.

 

Justice N. Sohlberg

I concur in both the principles and the particulars of the judgment of my colleague President M. Naor. I would add three marginal comments on the effectiveness of the policy of demolishing homes, on the claim of discrimination between Palestinians and Jews, and on the application of international law.

1.         (a)        On the effectiveness of the policy of demolishing homes: As is well known, this Court’s conception of the exercise of authority under Regulation 119 is that it is underpinned by a deterrent purpose – and not a punitive one. As a consequence of this conception, it must be assumed that implementation of the Regulation indeed deters potential assailants, thus saving human life. However, deterrence, by its nature, is not something that can easily be quantified, if at all. In the past, the prevalent view on this Court was that it is not possible to prove this matter definitively, and therefore the State was not required to establish a factual basis in order to exercise the authority. Justice E. Goldberg ruled as follows in HCJ 2006/97 Ghanimat v. GOC Central Command [46], 655:

                      No scientific research has been conducted, nor can be conducted, to prove how many attacks have been prevented and how many souls saved as a result of the deterrent activities of sealing houses and demolishing them. From my point of view, however, in order for me not to intervene in the discretion of the Military Commander it is sufficient that the view that there is a certain degree of deterrence cannot be discounted.

In this spirit, several judgments held that the State cannot be expected to prove the effectiveness of the demolition of homes as a deterrent in a scientific, empirical fashion – as the Petitioners ask – and the professional position of the relevant security agencies that it is capable of deterring is sufficient in order for this Court not to intervene in its discretion (see: Abu Dahim, para. 11; Awadeh, para. 24; Qawasmeh, para 25).

            (b)       Recently, doubts have again arisen, both in this Court and in the legal literature, concerning the correctness of this approach. According to one argument, since this is an extreme sanction that seriously infringes the fundamental rights of those who were not actually involved in terrorist acts, it may be applied only when it is based on a firm factual foundation, in accordance with the standard requirements of administrative law. And since the burden of proof in this matter falls on the governmental authority, and this authority is not able to raise this burden, it must completely refrain from exercising the authority (see Amihai Cohen and Tal Mimran, Cost Without Benefit in the Policy of Home Demolitions: In the Wake of HCJ 4597/14 Muhammed Hassan Halil Awawdeh v. Military Commander in the West Bank, Hamishpat Online 1,3,5,14 (2014) (Heb.)).

            (c)        This argument cannot be accepted. An authority must often make difficult decisions, even when there is uncertainty about all their ramifications. In many situations, these matters are not amenable to scientific proof, and they rely on the wisdom and professional discretion of the competent authorities. Should one take away this power, one is – in practice – neutralizing the ability of the state authorities to confront new challenges (cf. Yoav Dotan, Two Concepts of Reasonableness, Shamgar Volume – Articles, pt. 1, 417, 461 (2003) (Heb.)). This applies in general, and it also applies, unfortunately, when basic human rights and human life are placed on the opposite sides of the scales.

In this context, the words of my colleague Justice H. Melcer, addressing the precautionary principle, are apt:

… the precautionary principle was designed to deal with the difficulty of the gap between the existing knowledge at a given time and the enormous and uncertain potential harm that was liable to be caused by an activity, if appropriate precautionary measures were not adopted in relation to that activity. From the outset, the principle allows the authority (the legislature or the executive) to adopt measures designed to prevent the catastrophe when a significant threat of irreversible, wide-spread damage exists, even if the probability is low and even when there is no proven scientific certainty that the damage will indeed eventuate. (HCJ 466/07 MK Zehava Gal-On, Meretz-Yahad v. Attorney General [58]).

This is applicable to the present case as well.

            (d)       In the circumstances of the present case, I agree with the President’s assessment regarding the collection of confidential material that was shown to us – the work of experienced professionals, who are well acquainted with the trends of the society in which the terrorists move – which provides reassurance that fear of damage to the homes of relatives of the terrorists creates deterrence among potential terrorists.

            (e)        Questions about the effectiveness of the measure of demolition as a means of deterrence have also been raised in this Court (see: Cedar, para. 3, per Justice U. Vogelman, and the opposing comments of Justice Y. Amit; HaMoked Defence Center, para. 6, per Justice E. Hayut and paras. 5-14 of my opinion). These judgments noted, based on an examination of the research on this subject, how difficult it is to measure the effectiveness of deterrence. However, when we are dealing with a measure that entails extreme harm to the most basic of property rights – a person’s home – this Court has stressed the need for follow-up, for collecting and processing data that relates to the demolition of terrorists’ homes and its consequences (“another ‘measured step’”, in the words of my colleague the President in para. 6 of her decision handed down today in HCJFH HaMoked Defence Center, relying on the words of Deputy President E. Rubinstein and Justice E. Hayut in the HaMoked Defence Center case). At the same time, mention must be made of the true, genuine difficulty of the professional bodies in basing their expert position on empirical grounds. A study of the sparse academic literature on this subject (on which I elaborated in the HaMoked Defence Center case) shows that such an analysis might yield real operative conclusions only if it is done from a long-term perspective, using tools from the statistical-empirical field of research. Academic research that examines terror from the perspective of various disciplines reveals the difficulty involved in collecting data that proves or disproves deterrence, as well as the difficulty in isolating the effect of a specific aspect – such as the use of house demolitions – from an array of aspects of counter-terrorism. Needless to say, this does not detract from the state’s duty  to collect data and analyze it to the best of its ability, and also to review its policy on this subject in light of this data. However, it cannot be asked to carry out comprehensive academic research, as the Petitioners demand. In addition, the establishing of a factual basis can certainly not be expected solely on the basis of the relatively few demolitions that were carried out in the short time since the judgment in the HaMoked Defence Center case was handed down.

            (f)        However, since the argument of the factual foundation was raised here, we will mention that from a review of the academic research dealing directly with this subject, it is evident that the position that regards house demolitions as a deterrent is well grounded. In the HaMoked Defence Center case, I referred to the research of Efraim Benmelech, Esteban F. Flor and Claude Berrebi, Counter-Suicide-Terrorism: Evidence from House Demolitions, which was published in an academic journal (77 J. of Politics 27-43 (2015)) after that judgment was handed down. This research is limited to the effect of house demolitions on attempted suicide attacks during the period of the Second Intifada. The study reveals a clear effect, from a statistical perspective, of a decline in the number of attempted suicide attacks in the geographical areas in which demolitions were carried out, for a short period of approximately one month, until the deterrent effect dissipated. It would appear that no empirical statistical study not based on assumptions and conjecture alone but on the analysis of the data has been conducted that arrives at conclusions that are contrary to this recent research (and see, in greater detail, what I wrote in the HaMoked Defence Center case, paras. 5-14; and Justice Hayut, ibid., para. 5).  Even if the deterrent effect of house demolitions is limited from the perspective of time and place, it is sufficient that we are saving one life by virtue of the demolition in order for the demolition to be worthwhile, despite the suffering that it involves for the relatives of the terrorist.

            (g)       Moreover, the deterrence is not designed to act solely on the terrorist’s mindset, but also to dissuade the potential terrorist from carrying out his plan by means of the intervention of his relatives: “In traditional Palestinian society, the family holds a central place in the life of the suicide bomber and makes a decisive contribution to shaping his personality and the degree of his willingness to sacrificing his life in the name of his religion or on behalf his people” (Emanuel Gross, The Struggle of a Democracy against the Terror of Suicide Bombers – Is the Free World Equipped with Moral and Legal Tools for this Struggle? Dalia Dorner Volume 219, 246 (2009) (Heb.) [English: The Struggle of a Democracy against the Terror of Suicide Bombers: Ideological and Legal Aspects, 22 Wisconson Int. L.J. 595, 636]).  Gross demonstrates and points out there that the support of family, and its public manifestation, help the terrorist organization: “they expand the circle of supporters of the organization among the Palestinian population, and thus increase their ability to enlist additional suicide bombers in the future..” The deterrence helps to neutralize the family element in promoting terrorism, and to motivate the family unit to act to limit it. Concern about demolition of its home is intended to recruit the family of the potential terrorist to use its influence in the desired direction, to dissuade it from putting a close circle of support at the potential terrorist’s disposal, and thus to deflect him from getting involved in terror or carrying it out. For good reason, in the framework of this decision we granted the petition in HCJ 7040/15 to prevent the demolition of a house owned by an uninvolved third party, an owner who has no familial or other connection to the person accused of murder in one of the attacks, nor with his family who lived in the apartment, other than the lessor-lessee connection by virtue of a contract with the mother. This differed from the other petitions, which we decided to deny, in which the family connection was present. Deterrence contributes – so we were convinced – even if only a little. This little bit of deterrence, in our time and place, is liable to be a decisive factor between good and evil.

2.         On the claim of discrimination between Palestinians and Jews: This claim must be dismissed, as stated by the President in para. 30 of her opinion. The reason that Regulation 119 has not been used in relation to Jews lies in the fact that in the Jewish sector, there is no need for that societal deterrence that is the purpose of the demolitions. The Jewish public, in general, is deterred and steadfast, and is not incited. True, it is undeniable that there are attacks by Jews against Arabs. The enforcement authorities, and the courts, are certainly required to apply the full force of the criminal law in these cases as well. This applies to the shocking murder of Muhammed Abu Hadid, not to mention the horrific murder of the Dawabsheh family, the full details of which are unknown. But the difference is greater than the similarity in many aspects, and mainly, in our context, in relation to the surroundings: decisive, assertive censure across the board in the Jewish sector – which is not the case on the other side.

3.         (a)        On the application of international law: It is only fitting to mention that international law, in its classical sense, deals with inter-state relations in times of war. The way in which the State of Israel, as well as other states in the Western world, deal with the phenomenon of terror raises legal and moral questions for which it is hard to find solutions in the classical treaties of international law (and see: Hilly Moodrick-Even Khen, Terror and International Humanitarian Law, 16 (2010)). As Justice Hayut wrote in the HaMoked Defence Center case:

                      However, it seems that in the area of counterterrorism, both international law and domestic Israeli law have yet to catch up with reality, and have yet to establish a comprehensive, detailed code of legal measures that a state may employ in fulfillment of its aforesaid obligation to protect itself and its citizens. Needless to say, this area desperately requires regulation. since the known law by which the nations of the world act is largely adapted to the traditional, familiar model of war between armies, whereas the new, horrific reality created by terrorist organizations and individuals who carry out terror attacks in Israel and around the world, disregards territorial borders and draws no distinction between times of war and times of peace. Thus, any time is the right time to spread destruction, violence and fear, usually without discriminating between soldiers and civilians. In fact, terrorism does not respect any of the rules of the game established by the old world in the laws of war, and this reality also requires that  jurists, and not only the security forces, rethink the subject in order to update these laws and adapt them to the new reality. (ibid., para.2).

Indeed,  when acts of terror do not distinguish between a soldier and a citizen and between a time of war and a time of peace; when every person, at the front or behind the lines, is a target; when every instrument can become an effective weapon, and sadly, the assailants turn their plowshares into swords and their pruning-hooks into spears (cf.: Isaiah 2:4; 54:17) – the expectation that the state will continue to adhere to dichotomous distinctions created by international law is liable to tie its hands in its war on terror, and threaten the security of its citizens (and see: Moodrick-Even Khen, p. 109ff.).

            (b)       The situation at present directly impacts on the interpretation of international law. We cannot interpret the international treaties that the State of Israel has ratified in dissociation from the concrete aspect of the war on terror in which we unfortunately find ourselves, and without taking into consideration the moral dilemmas that are unique to it on the one hand, and the security needs to which it gives rise on the other. This matter, too, was discussed in the HaMoked Defence Center case, where Deputy President E. Rubinstein wrote as follows (para. 22):

                      … the 1949 Geneva Conventions, and the preceding 1907 Hague Regulations, were designed and signed at a period that is different to our own. The terrorism with which the world must contend, the State of Israel being no exception, presents complicated challenges since the terrorist organizations do not abide by these or other conventions …  the humanitarian provisions of the Hague Convention (IV), which were assumed by Israel despite the fact that it did not recognize the application of the Convention from a legal perspective …. are to be construed in a manner that will preserve their spirit and realize their underlying purposes, while concurrently permitting the State of Israel to protect the security of its residents in the most basic sense of the word.

I can only concur in these words, and hope that the sages and scholars of international law will continue to develop the jurisprudential aspects that are unique to the situation of combat between sovereign states and terrorist organizations, and regulate this area by striking a suitable balance between humanitarian protection of human rights on the one hand, and maintaining the capability of states to fight the terrorist organizations effectively, on the other hand.

 

Justice H. Melcer

1.         I concur in the comprehensive, well-considered and (factually and legally) precise judgment of my colleague President M. Naor. I also agree with the incisive comments of my colleague Justice N. Sohlberg.

I will, nevertheless, permit myself a few comments in order to clarify my position.

2.         The subject of forfeiture and demolition of property under Regulation 119 of the Defence Regulations is within the competence and the discretion of the Military Commander. In these matters, he consults with the Israel Security Agency, and he is subject – from the point of view of domestic constitutional law – to the authority of the political echelons under the provisions of Basic Law: The Army. Hence, responsibility for implementation of the Regulation, or for its non-implementation, lies wholly with the above actors, and this Court’s review of them is legal only.

3.         Regulation 119 in its present formulation was enacted (in its English version) and introduced into the law of our State and the law of the Judea and Samaria region during the British Mandate, pursuant to Article 6 of the Palestine (Defence) Order-in-Council 1937, and it has remained in force to this day. For a review of the sources of the Regulation and its history, see: Dan Simon, The Demolition of Homes in the Israeli Occupied Territories, 19 Yale Journal of International Law 1, 9-8. 15-18 (1994) (hereinafter: Simon).

It emerges that during the Mandate period, recourse to the Regulation (and to what preceded it) was relatively frequent, when the need arose in times of terror attacks and activity (see: Simon, ibid.; Brigadier General Uri Shoham, The Principle of Legality and the Israeli Military Government in the Territories, 153 Military Law Review 253, 259-260 (Summer, 1996) (now our colleague, Justice U. Shoham).

After the Establishment of the State of Israel and until 1979, forfeiture and demolition orders, insofar as they were issued under the Regulation, were not reviewed by this Court. Things began to change, in the sense of judicial review of the orders, in 1979, with the rendering of the judgment in HCJ 434/79 Sahwill v. Commander of the Judea and Samaria Region [57], and this change contributed to an understanding on the part of the international community of the need to use this measure in exceptional cases. Nevertheless, doubts have arisen over the years with respect to the effectiveness of the deterrence achieved by this measure, and there has been growing criticism in Israel and abroad against the demolition of homes in reaction to acts of terror (some of the articles that have been published on this subject were cited in the opinion of my colleague the President, and of my colleague Justice Sohlberg, and see also: Simon).

4.         Over time, and particularly in light of the aforesaid at the end of para. 3, administrative law was applied to this area, and the IDF, too, initiated a study of the subject by means of the Shani Committee. Following the study, the practice of implementing Regulation 119 was stopped for a number of years, and the possibility of resorting to it remained in force only for extremely exceptional cases and situations, which unfortunately exist at present.

At the same time, this Court – bearing in mind the developments in Israeli public law and in international law (which has not yet specifically addressed the subject in cases such as those that are confronting us) – has seen fit to limit the possibility of implementing Regulation 119 on three principal planes:

            (a)        Application of the rules of administrative law to the process, as aforesaid.

            (b)       Limiting the grounds for forfeiture and demolition of homes to the homes of the terrorist who perpetrated the terror attack, and of his family (therefore, inter alia, we granted the petition of the owner of the building who, beyond leasing out the apartment to the assailant and his family, with no awareness of the intentions of the terrorist, was not involved in any other way in the attack).

Moreover, Justice E. Hayut emphasized in the HaMoked Defence Center case that in her view, if the terrorist’s family members whose home is about to be demolished succeed in convincing the authorities, with sufficient administrative evidence, that prior to the perpetration of the attack, they tried to dissuade the assailant from doing so, then this fact ought to be accorded extremely significant weight that may, in relevant cases, overturn the decision to destroy the home of those relatives. I accept this approach.

            (c)        Adding the remedy of compensation for uninvolved, innocent victims, insofar as harm is caused to them as a result of carrying out the demolition and under the conditions enumerated in the judgment of the President.

5.         In view of the aforesaid at the end of para. 4(b), during the hearing I repeatedly asked counsel for the Petitioners who were family members if they had attempted to dissuade the assailant before he carried out his plans. Their answer was that they did not know of his plans, and therefore they could not dissuade him. I therefore persisted and asked if, in retrospect, the relatives condemn acts such as these (which is likely to contribute to deterrence), but this question remained hanging in the air, and even in their subsequent written responses, they did not address this matter, which begs an explanation.

6.         Counsel for the Petitioners argued, inter alia, that their clients were not given a proper opportunity to express their arguments in the framework of the rules of administrative law that apply here, as stated in para. 4(a) above, for on the one hand, the Respondents delayed the issuing of the orders for many months after the terrorist acts that are the subject of the petition (so that deterrence is not relevant, even according to the Respondents), and on the other hand they were given only 48 hours (including Friday and Saturday) to submit their written response to the Military Commander. Moreover, they contended that the argument of deterrence is groundless, for in the past, judgments that denied petitions concerning demolition of homes were not carried out for several months.

We therefore asked the State Attorney’s Department to submit to us details of the petitions that were denied in these contexts, their causes, the dates of the judgments and of the execution of the demolitions (if at all).

From the table submitted by the Department, we indeed see that sometimes, for political and security reasons, including operational situation assessments, there were delays in carrying out the demolition orders in relation to which the petitions were denied, and one order has not yet been carried out. Moreover, there was a delay even in issuing the orders that are the subjects of the petitions. Therefore, limiting the time of the hearing to 48 hours (which included Friday and Saturday) was indeed not the right thing to do, and as a result of the haste, there were also errors in the formulation of the orders, as described in the opinion of the President. Moreover, in the recent Abu Jamal case, there was even a mistake in identifying the house that was marked for demolition, and were it not for the process of judicial review before this Court, there would have been an irreversible error in that case.

This flaw of excessive limitation relating to the time of the hearing was, in fact, corrected in the circumstances, for counsel for the Petitioners succeeded, at the end of the day, in submitting their arguments, and extensive hearings were also held in this Court. However, in future, the directives of the President in this context, as formulated in her opinion, must be followed strictly.

7.         As for the arguments of discrimination in relation to use of Regulation 119 in regard to Jews as opposed to Palestinians, I would comment that beyond raising the argument, data to support the argument of such discrimination was not submitted to us. However, I would like to note that if we should, Heaven forbid, reach a situation that would also require such deterrence vis-à-vis the families of Jewish terrorists or of minorities who are residents of Israel – in principle, they should be subject to the same law.

8.         Finally, I find it appropriate to recall the moving, emotional words spoken in the course of the hearing by the mother of Danny Gonen, Mrs. Deborah Gonen, and by the father of Malakhi Rosenfeld, Mr. Eliezer Rosenfeld. Beyond a description of their loved ones who were murdered, cut down in the prime of their lives, and beyond the illustration of the heavy loss suffered by their families and the Jewish people, they sought to support the orders that were issued by the Military Commander, not for reasons of revenge, but for the purpose of deterrence – so that others would not be harmed like their children and they were.

In this context I find it appropriate to express the hope, alongside sincere condolences extended to them and to other families of victims, that their said wish will be realized, that innocents will no longer be harmed, and that we return to the days and the situation in which deterrence will no longer be necessary.

 

Decided in accordance with the opinion of President M. Naor

 

Decided this 30^th day of Heshvan 5776 (Nov. 12, 2015).

(Corrected this 3^rd day of Kislev 5776 (Nov. 15, 2015)).

 

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioners in HCJ 2141/20:               1.         Adalah – Legal Center for Arab Minority Rights  in Israel

                                                            2.         The Joint List

Petitioner in HCJ 2187/20                              The Union of Journalists in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

Attorney for the Petitioner in HCJ 2109/20: Pro se

Attorneys for the Petitioner in HCJ 2135/20:  Dan Yakir, Adv., Gil Gan-Mor, Adv.

Attorney for the Petitioner in HCJ 2141/20: Hassan Jabareen, Adv., Suhad Bishara, Adv.

Attorney for the Petitioners in HCJ 2187/20: Moran Svorai, Adv.

Attorney for Respondents 1-7 in JCJ 2109/20 & Respondents in HCJ 2135/20: Reuven Eidelman, Adv., Shosh Shmueli, Adv.

Attorney for Respondents 8-9 in HCJ 2109/20: Avital Sompolinsky, Adv.

 

 

Petitions for order nisi and interim order

 

Israeli Supreme Court cases cited:

[1]       HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, (April 7, 2020) [https://versa.cardozo.yu.edu/opinions/yedidya-loewenthal-adv-v-prime-minister]

[2]       CA 6455/19 Yeruhamovich v. Official Receiver, (Jan. 28, 2020)

[3]       HCJ 3267/97 Rubinstein v. Minister of Defense, IsrSC 52(5) 481 (1998) [https://versa.cardozo.yu.edu/opinions/rubinstein-v-minister-defense]

[4]       HCJ 4491/13 Academic Center of Law and Business v. Government of Israel, (July 2, 2014)

[5]       HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March 27, 2016) [summary of judgment: https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[6]       HCJ 5936/97 Oren Lam v. Ben Tzion Dal, Director-General Ministry of Education, Culture and Sport, IsrSC 53(4) 673 (1999) [https://versa.cardozo.yu.edu/opinions/lam-v-dal]

[7]       HCJ 7510/19 Orr-Hacohen v. Prime Minister, (Jan. 9, 2020)

[8]       CrimA 1302/92 State of Israel v. Nahmias, IsrSC 49(3) 309 (1995)

[9]       CA 439/88 Registrar of Databases v. Ventura, IsrSC 48(3) 808 (1994)

[10]     LCA 2558/16 A. v. Claims Officer of the Ministry of Defense, (Nov. 5, 2017)

[11]     AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority, (May 19, 2005)

[12]     LCA 8954/11 Doe v. Doe, IsrSC 66(3) 691 (2014) [https://versa.cardozo.yu.edu/opinions/doe-v-doe]

[13]     HCJ 8070/98 Association for Civil Rights in Israel v. Minister of the Interior, IsrSC 58(4) 842 (2004)

[14]     HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (May 28, 2012) [https://versa.cardozo.yu.edu/opinions/association-civil-rights-israel-v-israel-police]

[15]     HCJ 6298/07 Ressler v. Knesset, (Feb. 21, 2012) [https://versa.cardozo.yu.edu/opinions/ressler-v-knesset]

[16]     HCJ 10203/03 Hamifkad Haleumi v. Attorney General, (Aug. 20, 2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[17]     HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services, (May 8, 2012)

[18]     HCJ 466/07 MK Zahava Gal-On v. Attorney General, (Jan. 11, 2012) [https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]

[19]     HCJ 7040/15 Hamad v. Military Commander in the West Bank, (Nov. 12, 2015)

[20]     LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality, (July 27, 2017)

[21]     Nesher Israel Cement Enterprises v. Ministry of Environmental Protection, (July 23, 2018)

[22]     CrimApp 8823/07 A. v. State of Israel, IsrSC 63(3) 500 (2010) [https://versa.cardozo.yu.edu/opinions/v-state-israel-0]

[23]     AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority, (Feb. 11, 2008)

 

United States Supreme Court cases cited:

[24]     United States v. United States Dist. Ct., 407 U.S. 297 (1972)

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

 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

 

Judgment

(April 26, 2020)

 

President E. Hayut:

            The joined petitions before us challenge the Government’s decision of March 31, 2020 to authorize the Israel Security Agency (hereinafter: ISA), by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter the ISA Law), with the consent of the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee, to collect, process and use “technological information” regarding persons who have tested positive for the novel coronavirus (hereinafter: the virus), as well as persons who came into close contact with them (hereinafter: the Enabling Decision). The Journalists Union further asks that the journalists in the State of Israel be exempted from the application of the Enabling Decision, due to the fear of infringement of journalistic privilege and the exposure of sources.

            I will already note at the outset that the petitions were also originally directed at an additional Government Decision of March 16, 2020 (which was amended pursuant to remarks by this Court on March 25, 2020), that authorized the Israel Police, by virtue of Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations), to supervise the isolation requirement and enforce it upon those required to remain in isolation. This was to be accomplished by authorizing the police to receive location-data samples from the telecommunication companies in order to check whether the address where a person was required to isolate matched the location of that person’s cellphone. On March 23, 2020, the Governmental Respondents informed the Court that they intended to enshrine the police authorization in this regard in primary legislation, subsequent to which the Criminal Procedure (Enforcement Authorities – Telecommunication Data) (Temporary Order – Novel Coronavirus) (Receiving Location Data for the Purpose of Supervision of Isolation Orders) Bill, 5780-2020 (hereinafter: the Telecommunications Data Bill) was presented to the Knesset plenum. The Telecommunications Data Bill passed its first reading, but on April 23, 2020, the Respondent informed us that following several debates in the Foreign Affairs and Defense Committee, the Government decided not to present the Bill for second and third readings in the Knesset at this time. The Governmental Respondents further informed us that on April 22, 2020, the Police Regulations will expire, and that the authorities granted thereunder would not be exercised at this time.

            Therefore, for the present, the hearing in regard to the Police Regulations, and the interim order requested in that regard by the Petitioners in HCJ 2141/20, has become moot. This judgment will, therefore, focus upon the Enabling Decision in regard to the activity of the ISA.

 

Factual Background

1.         These are days of  national and worldwide crisis of dimensions and scope the likes of which we have not known (see: HCJ 2435/20 Loewenthal v. Prime Minister [1], para. 1 (hereinafter: the Loewenthal case). The coronavirus epidemic that began to spread throughout the world several months ago, and that has cost so many lives in various countries, did not spare the State of Israel. Since the first infected person was discovered here, two months ago, there have been over 15,000 verified cases, and some 200 people have perished from the illness. For about a month, the majority of Israeli citizens have been sequestered in their homes, and the education system is closed. Many economic branches are at a standstill, while others are on the verge of collapse or their activity limited, and the resulting daily economic harm to the marketplace approaches more than a billion shekels. The data of the government agencies shows that there are more than a million unemployed in Israel. Entire cities and towns have been placed under quarantine, and movement between cities has been prohibited for days at a time. The activity of Ben Gurion Airport has been disrupted and almost brought to a standstill. This year, we celebrated Passover with only our nuclear family members who live with us, and the situation in some countries – including countries with advanced, developed health systems – is even worse.

2.         In order to contend with the spread of the virus, the Israeli Government adopted a policy of “social distancing”, and the isolation of verified patients and those who came into close contact with them. To that end, a number of very exceptional steps were adopted over time, among them, authorizing the ISA to aid in epidemiological investigations through the use of the technological means at its disposal, for the purpose of identifying, as quickly as possible, the route of the movement of anyone who tested positive for the virus during the 14 days prior to the diagnosis, and locating all the people who were in that person’s close proximity for more than a quarter of an hour (hereinafter: contacts).

            In this regard, we would note that the ISA was originally authorized to perform the said activity by promulgating emergency regulations (hereinafter: the ISA Regulations). The original petitions challenged that decision, focusing upon issues related to the authorities granted to the Government by virtue of a Declaration of a State of Emergency, and the possibility of promulgating emergency regulations for the purpose of contending with a civilian health crisis, like the spread of the coronavirus epidemic. Following the hearing of the original petitions, on March 19, 2020, an interim order was granted that stated in regard to the ISA Regulations that “if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision,” and the restricting of the ISA Regulations only to verified patients.

3.         Following the swearing-in of the 23^rd Knesset, the Arrangements Committee was established on March 24, 2020, along with several temporary Knesset committees, among them the Knesset Foreign Affairs and Defense Committee and the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee (hereinafter: the Services Committee). That same day, the Government passed Decision no. 4916, according to which the ISA was authorized, by virtue of sec. 7(b)(6) of the ISA Law, to collect and process “technological information” regarding persons who have tested positive during the 14 days prior to their diagnosis, for the purpose of identifying that person’s route of movement and identifying the people who were in that person’s close proximity during that period, so that the Ministry of Health could instruct them to self-isolate at home.

4.         Section 7(b)(6) of the ISA Law permits the Government to authorize the ISA to perform activities in an area that is not among the core areas of its authorized activity under the ISA Law, subject to meeting the conditions set forth under the section, which we will address below, and subject to the consent of the Service Committee. The Government’s decision was therefore presented to the Service Committee, which held five debates on the issue, three of which were unprecedented public hearings. In the public hearing on March 26, 2020, conducted as a video-conference – with the participation of representatives of the Knesset and the relevant government agencies, and public representatives, including representatives of some of the Petitioners – questions were raised in regard to the period during which the use of the surveillance authorizations granted to the ISA would be required. The representatives of the Ministry of Health pointed out that the use of these authorizations would be necessary as long as the Government’s policy is premised upon home-isolation of those who have come into close contact with people who have tested positive. They added that, in their opinion, in the event of a decision to relax the isolation policy, the use of the ISA for tracking would not become superfluous, but on the contrary – to the extent that restrictions would be eased, the need for the ISA’s “contact tracing” would become all the more necessary. In view of these circumstances, the Ministry of Health stated that it was unable to delimit the timeframe in which the ISA’s assistance would be required.

5.         On March 29, 2020, the Security Committee held a closed-door session, and the open session continued on March 30, 2020 – this time, only with the participation of members of the Knesset and the Government. The debate addressed four possible paths for authorization of the ISA’s use of its technological resources for the purpose of epidemiological investigation: (1) amending the ISA Law in a regular legislative process, and adding the said authority to the law; (2) enacting a separate law designated for that purpose; (3) promulgating emergency regulations by the Government, by virtue of sec. 39 of Basic Law: The Government, similar to the approach adopted prior to the swearing-in of the 23^rd Knesset that was the subject of the original petitions; (4) granting Government authorization to the ISA to conduct this activity by virtue of sec. 7(b)(6) of the ISA Law, by means of an enabling decision.

            The Committee’s legal advisor, Advocate Miri Frenkel-Shor, presented the advantages and disadvantages of each of the alternatives, and recommended adopting the last approach, i.e., that of an enabling decision, which was actually implemented following the swearing-in of the 23^rd Knesset.

6.         The Service Committee held another meeting, on March 31, 2020, in which it approved Government Decision No. 4950 – i.e., the Enabling Decision – following several changes and amendments made pursuant to comments by the Service Committee. This decision grants the ISA the authority “to receive, collect, and process technological information for the purpose of aiding the Ministry of Health in carrying out an examination in regard to the 14 day period prior to the diagnosis of the patient, for the purpose of identifying location data and routes of movement of the patient and identifying persons who came in close contact with that person, in order to locate those who might have become infected by that person” (sec. 2(a) of the Enabling Decision). At present, the Enabling Decision will remain in force until April 30, 2020, and its definition of “patient” was restricted in accordance with the decision of this Court in the interim order. The term “close contact with a patient” was defined as – contact that is likely to lead to infection in accordance, to the extent possible, with the clinical directives presented by the Ministry of Health in regard, inter alia, to the distance from the patient and the period of exposure, as shall be established in instructions that will be published on the Ministry of Health’s website, which will be updated from time to time, and brough to the attention of the Service Committee. General directives were established in regard to the protection of the information and its processing by the ISA. A provision was added that establishes that while the Enabling Decision is in force, the Minister of Health will periodically examine the need for the continued assistance of the ISA, in view of the restrictions upon activity imposed upon the public, or the availability of alternatives for achieving the purpose of the decision. In addition, a duty to notify the Service Committee was established, requiring that details in regard to the number of patients for whom the Ministry of Health requested the collection of data, the number of persons located by the ISA due to their proximity to a patient, and the steps taken by the Ministry of Health on the basis of the requested data, be presented to the Committee every six days, and to the Attorney General every three days.

7.         The mechanism established in the Enabling Decision for permitting assistance from the ISA and for employing its technological means for tracking contacts is as follows: after diagnosing a patient with a positive laboratory test for the virus, the Ministry of Health requests that the ISA track the patient’s movement over the course of the 14 days prior to the diagnosis, and identify the people who were in the patient’s proximity for more than a quarter of an hour during that period. To that end, the Ministry of Health gives the ISA the patient’s name, identification number, cellphone number, and the date of the diagnosis. At that point, the patient is sent a text message informing him that his particulars have been given to the ISA. After processing the necessary information, the ISA informs the Health Ministry of the route of the patient’s movement over the 14 days prior to the diagnosis, and details of the relevant contacts. These details include the name of anyone in close contact with the patient, as defined in the Enabling Decision, their identification number, telephone number, date of birth, and the date and place of exposure. At this point, a text message is sent to each of the people whose particulars were transferred to the Ministry of Health as persons who had come into close contact with the diagnosed patient, and they are asked to begin self-isolation at home for 14 days, and to report that on the Ministry of Health’s website.

8.         In view of this development, we permitted the Petitioners in all the petitions to amend their petitions accordingly. The amended petitions were submitted on April 5, 2020, the responses to them were submitted by April 12, 2020, and the hearing, which was held on April 16, 2020, was broadcasted to the public by livestream. With the consent of the Petitioners, a closed-door, ex parte hearing was also held in the course of the hearing, and the Respondents agreed that the petitions would be deemed as if an order nisi had been granted.

 

Arguments of the Parties

9.         The Petitioner in HCJ 2109/20, Advocate Shachar Ben Meir, the Petitioner in HCJ 2135/20, The Association for Civil Rights in Israel, the Petitioners in HCJ 2141/20, The Adalah – Legal Center for Arab Minority Rights in Israel and the Joint List Knesset faction (hereinafter: Adalah and the Joint List), and the Petitioner in HCJ 2187/20, The Union of Journalists in Israel (hereinafter: the Journalists Union) (hereinafter jointly: the Petitioners) all argue that authorizing the ISA to address a civilian public-health issue is contrary to the ISA Law, and that the Government’s Enabling Decision in this regard was ultra vires. According to the Petitioners, the ISA, as the preventive security agency of the State of Israel, is only authorized to conduct security-related tasks, and therefore sec. 7(b)(6) of the ISA Law – which allows the Government, with the consent of the Service Committee, to authorize the ISA to carry out tasks in another area for the purpose of protecting and advancing “other essential national security interests” – should be narrowly construed. According to the Petitioners, this section should be understood as permitting such activity only in regard to security threats in the “narrow” sense. Alternatively, the Petitioners argue that even if sec. 7(b)(6) of the ISA Law be given a broader interpretation, permitting the ISA to act in extra-security areas, that authority should be exercised only in extreme cases, which the current matter is not. Adalah and the Joint List further argue that the Enabling Decision violates fundamental individual rights, and therefore, in substance, it constitutes a primary arrangement. In their view, sec. 7(b)(6) is merely a “basket clause”, and therefore such a decision cannot be made in reliance upon it.

10.       The Petitioners further argue that the powers granted to the ISA by the Enabling Decision violate individual rights and fundamental principles of the system. Primarily, they argue that the constitutional right to privacy is violated, and Adalah and the Joint List are of the opinion that there is also a no-lesser violation of the constitutional right to dignity. The Petitioners do not dispute that the Enabling Decision was made for a proper purpose that befits the values of the State of Israel as a Jewish and democratic state, nor that there is a rational connection between that purpose the chosen means, but they are of the opinion that there are less harmful means than those chosen, and that the harm caused by those means exceeds its benefit. In this regard, the Petitioners argue that choosing the ISA to carry out a civilian public-health task fundamentally alters the checks and balances of a democratic society, in which mass surveillance of citizens by the security services should be reserved for specific needs of protecting state security. Therefore, they argue, the task should have been assigned to civilian agencies, like private companies, the Ministry of Health, or at least the Israel Police. The Petitioners further insist that the mechanism established by the Enabling Decision is inconsistent with the applicable norms for the protection of the privacy of databases, particularly in view of the compulsory character of the mechanism and the associated lack of transparency.

11.       On its part, the Journalists Union raises arguments concerning the implications of the Enabling Decision for journalists in the State of Israel. According to the Journalists Union, the Enabling Decision infringes freedom of the press and the confidentiality of journalists’ sources, as it may create a chilling effect upon sources, who may fear exposure to “location tracing” performed by the government authorities. The Journalists Union stresses the importance of protecting journalistic sources, particularly in these unusual times, and emphasizes that the number of persons holding press credentials in Israel is not great – totaling some 5,000 persons. Therefore, in its view, the danger of excepting that group from the established arrangement is defined and limited. The Journalists Union therefore petitions for excepting journalists from the application of the Enabling Decision, or at least, that special conditions be established for exercising the authorities therein in regard to journalists.

12.       As opposed to this, Respondents 1-7 in HCJ 2109/20, which are the relevant governmental organs (hereinafter: the Government Respondents), and Respondents 8-9 in HCJ 2109/20 and HCJ 2135/20 – the Knesset and the Chair of the Service Committee, Knesset Member Gabi Ashkenazi (hereinafter: the Knesset Respondents) (jointly: the Respondents), argue that the phrase “other national interests vital to the national security of the state” in sec. 7(b)(6) of the ISA Law encompasses broader areas than security in the narrow sense, in view of the language and purpose of the section. It is further argued that the epidemic caused by the coronavirus, and the need to confront it and stop its spread, fall within the scope of cases in which the ISA can be empowered by virtue of sec. 7(b)(6) of the ISA Law. The Government Respondents do not deny that that the Enabling Decision infringes the constitutional right to privacy, but they are of the opinion that the violation is proportionate. The Government Respondents further note that, at the outset, the Ministry of Health conducted individual epidemiological investigations in which each confirmed patient was interviewed, and his movements over the two weeks prior to his isolation were published on the website of the Ministry of Health and the broadcast media. But as the number of confirmed cases in Israel rose, individual interviews became impractical, and the professionals in the Ministry of Health concluded that the use of technological means was required in order to identify the movement of those positively diagnosed  as quickly as possible, and in order to locate all the people who were in close proximity of such persons for more than a quarter of an hour during the 14 days prior to the positive diagnosis. To that end, the Ministry first considered employing technologies offered by private companies, but those alternatives were found to be inadequate, and attempts to obtain the assistance of large international companies that have technological means that might be of use did not receive positive replies. Assigning the task to the Israel Police, which would receive the telecommunications data from the telecommunications companies, was also considered, but the relevant professionals found that there was a clear gap between the ability of the Police and that of the ISA in this regard. The Respondents further emphasize that the undeniable infringement of the right to privacy must be viewed against the right to life of the citizens and residents of the State of Israel, and the stability of the Israeli marketplace. According to the Respondents, under these circumstances, the weight of the latter rights and interests exceeds that of the violation of the right to privacy.

13.       As for the arguments of the Journalists Union, the Respondents argue that the powers granted under the Enabling Decision do not infringe freedom of the press, as claimed. This is so, inasmuch as if a journalist is positively diagnosed, his personal details will only be provided to the ISA and the Ministry of Health (and only to those granted access to the data in those bodies). The Respondents emphasize that the process of locating and processing the technological information in regard to the patient’s contacts is largely automatic. They further point out in this regard that the possibility of excepting journalists and others entitled to privilege was considered, but the importance of saving lives and stopping the chain of transmission is greater than the need to protect privileges.

 

Examination and Decision

14.       The central question before the Court concerns the legality and constitutionality of authorizing the ISA to employ the means at its disposal to assist the Ministry of health in conducting epidemiological investigations by collecting and processing “technological information”. Examining this question requires addressing it on three levels: First, in terms of authority – we must examine whether sec. 7(b)(6) of the ISA Law grants the Government the authority to employ the ISA in a purely civilian area that concerns a danger to public health. For that purpose, we must construe the meaning of the phrase “other essential national security interests” in sec. 7 of the ISA Law. Second, if the answer to the first question is positive, then we must further enquire as to the whether it was proper, under the circumstances, to use a Government Decision under sec. 7(b)(6) of the ISA Law for the purpose of empowering the ISA, or whether it would have been preferable to enshrine that authority in primary legislation. Lastly, if the answer to the second question is that it was not necessary to enshrine the authority in primary legislation, then we must consider whether the Enabling Decision is proportionate. That, given the undeniable infringement of human rights resulting from authorizing the ISA to act as stated.

 

The Issue of Authority – The Normative Framework

15.       The ISA Law was enacted in 2002, reflecting the view that the activity of the preventive security service of the State of Israel should be addressed in appropriate primary legislation that would define its authority, establish its subordination to the civil authorities, and the oversight of its activity. For the matter before us, the provisions concerning the purpose of the ISA, detailed in sec. 7(a) of the Law, and its functions, as detailed in sec. 7(b) are of relevance. These sections state as follows:

7.         (a)        The Service is responsible for protecting state security, the democratic regime and its institutions against terrorist threats, terrorism, subversion, espionage, and revealing state secrets, and the Service will also act to protect and advance other essential national security interests of the State, as the Government shall decide, and subject to any law.

(b)       For the purpose of subsection (a), the Service shall perform the following tasks:

(1)       Frustration and prevention of illegal activity intended to harm state security, the democratic regime or its institutions;

(2)       Protecting people, information and places as decided by the Government;

(3)       Establish directives in regard to security classification for roles and positions in the civil service and other bodies, as shall be decided by the Government, with the exception of elected officials and judges, and establishing the security compatibility of a person for a classified role or position, including by means of polygraph examination, as shall be established in rules. For the purpose of this section: “Judges” – a person holding judicial authority under Basic Law: The Judiciary, with the exception of candidates for judgeships and a military judge under the Military Justice Law, 5715-1955;

(4)       Establishing security procedures for bodies as decided by the Government;

(5)       Conducting intelligence research and providing advice and situation evaluations to the Government and other bodies as decided by the Government;

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State;

(7)       Collection and acquisition of information for the protection and advancement of the matters detailed in this section.

 

            The parties to the petitions are divided as to the meaning of the phrase “essential national security interests of the State” that appears twice in sec. 7 of the ISA Law. According to the Petitioners, the ISA Law expresses a sensitive balance between granting very broad powers to the ISA, on the one hand, and restricting the use of those powers solely for security purposes, on the other hand. The Petitioners argue that coronavirus epidemic – as complex and difficult as it may be – is not among the situations that would justify “crossing the Rubicon” and authorizing the ISA to employ its abilities – that are rooted in preventive security – in order to assist in performing epidemiological research in the framework of a health crisis that does not present a threat to the very existence of the state. As opposed to this, the Respondents are of the opinion that the use of the term “national security” rather than “state security” in sec. 7 of the ISA Law indicates that it is possible to authorize the ISA to carry out missions that are not “security related” in the narrow sense. However, the Respondents agree that expanding the ISA’s activity beyond the narrow area of security for which it is responsible is problematic, and must be resorted to only in exceptional cases.

            In order to resolve the dispute between the parties as to the proper interpretation of the provisions of sec. 7(b)(6), we must make recourse to our system’s accepted rules of interpretation.

 

Section 7(b)(6) of the ISA Law – The Interpretive Process

16.       The interpretive journey begins with the language of the provision we seek to interpret (CA 6455/19 Yeruhamovich v. Official Receiver [2], para. 9 (hereinafter: the Yeruhamovich case)). Section 7(b)(6) of the ISA Law speaks of “Activity in another area […] intended to protect and advance essential national security interests”, and it would appear that the words “national security” are the key words requiring interpretation.

            The term “national security”, and the aspects comprises, does not have a universally accepted definition (Greg Carne, Thawing the Big Chill: Reform, Rhetoric and Regression in the Security Intelligence Mandate, 22 Monash U. L. Rev. 379 (1996) (hereinafter: Carne)). The conceptions of security differ from country to country. They derive from their different characteristic security challenges, and from the differences between the bodies and institutions responsible for security in each state. Even in Israel, the concept of “national security” does not have a comprehensive statutory or case-law definition, and therefore, it is possible that its scope may differ in regard to different matters, in accordance with the context in which it appears.

            In the present matter, it may be possible to argue that the language of sec. 7(b)(6) of the ISA Law does not allow for authorizing the Israel Security Agency to engage in matters that are not in the field of security. As opposed to this, the legislature chose to employ two different terms is sec.7 – “national security” and “state security” – and we presume that the legislature did not do so for esthetic purposes, as a mere “linguistic adornment”. For interpretive inspiration, the Government Respondents went to great lengths in comparing other laws that employ the term “national security”, noting that this term has been broadly construed in various contexts, including aspects of national resilience in the socio-economic sphere. The Government Respondents further pointed to decisions in the field of international law in which the term “national security” was construed as comprising, inter alia, economic crises. Therefore, from a linguistic perspective, we cannot rule out the interpretation suggested by the Respondents, according to which the use of the term “national security”, as opposed to “state security”, granted the Government – by virtue of the section and the consent of the Security Committee – the authority to extend the activity of the ISA to another area that is not at the core of security activity, to the extent required for the purpose of protecting and advancing “essential national security interests” related to security in the broad sense. We would emphasize that in their arguments, all of the Respondents stress that we are not speaking of any “national interest” in any sphere, but rather the authorization applies only to exceptional cases in which there is an essential need to do so.

17.       In terms of the interpretive possibilities that the language “tolerates”, we must choose the interpretation that best realizes the normative purpose under examination (see: the Yeruhamovich case, para. 9). The subjective purpose of the law can be learned from its legislative history. In this regard, the fact that the Knesset Respondents went to the trouble of presenting the transcripts of the deliberations of the Knesset committees that addressed the enactment of the relevant section of the ISA Law is worthy of note and praise. These transcripts, which were classified until now under sec. 6(b) of the ISA Law and restrictions imposed by the Knesset Rules of Procedure, were appended, with the consent of the parties, as appendices to the Knesset’s response thanks to its efforts to permit their release. Although parts of the transcripts were blackened out for reasons of national security, they can serve to show the purpose of sec. 7(b)(6) of the ISA Law, and the serious reflection in its enactment.

18.       The Israel Security Agency Bill, 5758-1998 (hereinafter: the Bill) was submitted by the Government in 1998. In that framework, the original language of sec. 7(b)(6) established that one of the tasks of the Service was “activity in another area decided by the Government, with the consent of the Knesset Secret Service Committee, intended to protect and advance essential interests of the state”. In the course of the deliberations on the Bill, several members of the Subcommittee for the ISA Law expressed the fear of the possibility that the Government might improperly exploit the authority established under sec. 7(b)(6) of the Bill, and significantly expand the powers of the ISA to areas that deviate from the security matters for which it is expressly responsible. Thus, Knesset Member Ze’ev Binyamin Begin noted that the phrase “essential interests of the state” is understood as referring to “market, economic, and perhaps social” interests, and warned that the use of this power for such purposes might violate individual rights in matters that have nothing to do with security (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 24, 1998, pp. 23, 31). Knesset Member Ran Cohen joined in expressing those fears, emphasizing that “the ISA should deal with security matters, and the police should focus on purely civilian matters” (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 26, 1998, p. 10). Professor Mordechai Kremnitzer, who attended one of the sessions, was of the opinion that the ambiguous description of the ISA’s tasks, particularly the possibility for significantly expanding them by virtue of sec. 7(b)(6) of the Bill, might lead to the Government employing the ISA for purposes for which it was not created.

19.       In view of these comments, the end of sec. 7(b)(6) of the Bill was changed to “essential national security interests of the State”. Then Deputy Attorney General Meni Mazuz explained that this change was meant to limit the scope of the provision in the original Bill, explaining as follows:

The term “national security” is somewhat broader than the term “security” in its narrow sense. For example, if an enemy state intends to flood the State of Israel with counterfeit money, that is something that could harm national security, in the sense that the state could collapse. These are matters that are not security in the sense we are used to, of armed security, terror, army (transcript of the meeting of the Subcommittee for the ISA Law of Dec. 30, 2001, p. 33).

 

            The Deputy Attorney General went on to present a number of examples from areas that might be considered “essential national security interests of the State”. In this framework, he noted such economic issues as industrial espionage and transnational crime, as well as serious international crimes, and “things that are done around the world in which an organization like the ISA or parallel organizations have a certain professional advantage over the regular police” (ibid., p. 40). The ISA Legal Advisor at the time, Advocate Arie Rotter, later explained that the term “essential national security interests”, as such, allows for granting authority to the ISA “in a broad manner, beyond security matters” (Arie Rotter, The Israel Security Agency Law – Anatomy of a Law, 75, fn. 202 (2010) (hereinafter: Rotter) (Hebrew)). Ultimately, on Feb. 11, 2002, the ISA Law was approved by the Knesset plenum, and the language of sec. 7(b)(6) of the Law is the amended language of the Bill that we have just examined.

20.       As we see from the legislative history described above, due to reservations expressed by Knesset Members in regard to the significant expansion of ISA authority, the possibility of the Government employing the ISA was restricted only to areas directly related to the national security of the State. In this regard, it would appear that sec. 7(b)(6) of the ISA Law was not intended, as a rule, to expand the role of the ISA to civilian areas. However, from the discussions of the Bill, we learn that it was the legislative intent to include matters that deviate from the narrow meaning of “national security”.

21.       As for the objective purpose of sec. 7(b)(6) of the ISA Law and its ramifications for the interpretation of the term “national security”, an overly broad, ambiguous definition of the expression “national security” in this context might loosen the reins and permit employing the ISA’s abilities for missions that have absolutely nothing to do with the purpose of a preventive security organization. As noted, the ISA Law limits the purpose of the ISA, and grants it defined tasks that are meant to enable the State of Israel to contend with the security threats that are part of our daily reality, primarily by means of collecting preventive intelligence, providing personal protection for personages, and other security activities (see: Eli Bachar, Legal Advice in a Security Service, 52 (2013) (Hebrew); Isser Harel, Security and Democracy, 162 (1989) (Hebrew); for a comparative survey, see Ariel Zimmerman, The General Security Services Bill – A Comparative Study, (Israel Democracy Institute, 1997) (Hebrew)). To that end, it was provided with broader tools and means than those given the police, which contends with civilian threats and maintaining public order (and compare, for example, the powers of the ISA under sec. 11 of the ISA Law with those granted to the police in this regard in the Criminal Procedure (Enforcement Authorities – Telecommunications Data), 5768-20017). This established the balance between the security needs of the State and the foundations of our democratic regime, primary among them, respect for the rights and freedoms of the individual and the principle of the rule of law. Employing the abilities of the ISA in regard to the State’s citizens and residents who intend it no harm comprises a threat to the existence of a democratic society that, as a rule, is willing to abide a certain, limited and defined infringement of human rights, and occasionally even of the rule of law, in regard to threats to its continued existence. Expanding the situations in which recourse can be made to the preventive security service thus raises serious fears.

22.       For the sake of comparison, in strategic papers published by the United States government over the last few years, the term “national security” comprised such aspects as cyber threats, natural disasters, drug trafficking, shortages of natural resources, and even epidemics (see: Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577, 1722 (2011) (hereinafter: Donohue)). In regard to the latter, it would appear that the original intention was to epidemics resulting from biological warfare, but the federal government of the United States expanded the definition to epidemics not deriving from warfare (see, in this regard, the government’s response to the SARS epidemic in 2003, and to swine flu in 2009: Donohue, p. 1734). However, in view of the inherent ambiguity of the term “national security”, the American courts warned against exploiting its use, and expanding it in a manner that would infringe fundamental rights (see, e.g., United States v. United States Dist. Ct. [24], 314: “Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent”; and see how the United States Supreme Court addressed the broad and “malleable” use of national security considerations in the framework of the war on terror: Hamdi v. Rumsfeld [25], 520). This fear of the expansion of the meanings given to the term “national security” has been expressed over the years, inter alia, in Europe, Australia, and Canada (for an expanded discussion, see: Frank Foley, The Expansion of Intelligence Agency Mandates: British Counter-terrorism in Comparative Perspective, 35 Rev. Int. Stud. 983, 984-989 (2009); Carne, 381-385, 390-391).

            Therefore, there were those who were of the opinion that adding to the tasks of the ISA required the strictest test of protecting and advancing essential national interests for the prevention of an existential threat (see and compare: Rotter, pp. 17-18). As opposed to this, given the complexity of a changing reality, it is possible to accept the view that in certain, defined circumstances, the term “national security” may encompass a broader range of threats than those that are actually existential.

23.       In my opinion, sec. 7(b)(6) of the ISA Law should be construed as a provision that permits the Government to delegate authority to the ISA even in areas that do not concern security in the narrow sense, but the test that should be adopted for the term “national security” in this regard is that of a severe, imminent danger to the citizens and residents of the State or its regime”. In other words, as we move further from the core of security activity, the Government bears the burden of demonstrating that the situation is indeed one that presents a severe, imminent danger to the citizens of the State of Israel or to the national regime to an extent that requires mobilizing all its forces, among them its security services, in order to meet the challenge. This construction is necessary in view of the linguistic difficulty in interpreting the section, the limitation of its scope of incidence that can be discerned from its legislative history, and the emphasis – in Israel and abroad – upon preventing unchecked expansion of the powers of preventive security agencies.

            And note: the severe, imminent danger test that I believe should be adopted in this matter comprises two dimensions – a substantive dimension and a time dimension. The substantive dimension imposes a particularly high threshold of danger to the citizens and residents of the state. This does not necessarily mean an existential threat or a man-made subversive threat, but it is clear that the intention is not to the usual threats to public order that the police and civilian enforcement authorities contend with on a daily basis. As for the time dimension, the immediacy requirement requires that the danger must be such that there is no real, available possibility for developing more appropriate alternatives for confronting it before it is realized. In other words, the expansion of the powers of the ISA by virtue of sec. 7(b)(6) of the ISA Law beyond security matters in the narrow sense is not for an unlimited time period, and it is possible only as long as the immediacy requirement remains, and no other means are available for similarly addressing the severe threat. These strict requirements are necessary in view of the aforementioned fear of authorizing a preventive security service and employing its resources – which are neither transparent nor known, for understandable reasons – such that they be employed in an area that is not of a security nature in the narrow sense, and against citizens and residents of the state who intend it no harm.

24.       In summary, sec. 7(b)(6) of the ISA Law was intended to permit the Government – with the consent of the Security Committee – a certain measure of flexibility in regard to authorizing the ISA to act in circumstances that were unforeseen when the law was enacted. However, the section’s language, legislative history, and objective purpose show that the term “national security” in sec. 7(b)(6) is only slightly broader than the term “state security”, and in appropriate circumstance it can also comprise severe, imminent threats that do not derive from active subversion against the State and its institutions by some hostile entity. However, in expanding the ISA’s activity beyond the core areas of its security mandate in the narrow sense, we are concerned with the very limited expansion applicable to those rare, exceptional cases in which there is a severe, imminent threat to the citizens and residents of the state or its regime, carried out under strict restraint and supervision, and only temporarily.

 

From the General to the Specific: Is the Coronavirus Epidemic comprised by the Term “National Security”?

25.       As we have already noted in various recent decisions, like most countries, we are currently in an emergency situation unlike any we have previously experienced. As Justice I. Amit wrote in regard to another petition addressing the coronavirus epidemic, this situation leads us “from a legal standpoint … through a land not sown [Jeremiah 2:2], to legal and constitutional places and paths not imagined by our predecessors, nor even predicted by prophets of doom” (the Loewenthal case [1], para. 1). In the course of his statement to the Knesset Secret Service Committee, the Director General of the Ministry of Health, Mr. Moshe Bar Siman-Tov, referred to the current situation as “an unparalleled situation in modern times” (transcript of the meeting of the Service Committee of March 26, 2020, pp. 4-5). The National Security Council holds overall responsibility for the crisis, and its span of control for that purpose encompasses most government agencies, the Bank of Israel, the Airports Authority, the National Parks Authority, the IDF, the Israel Police, and other security and civilian entities mobilized in support.

26.       Under these exceptional, unprecedented circumstances, it would appear that even if we are not concerned with security needs in the narrow sense, the outbreak of the coronavirus crisis meets the conditions of the test for a severe, immediate threat to national security, as construed above. These unique circumstances, regarding which the Ministry of Health explained that “every passing hour is important” (statement of Deputy Attorney General Raz Nizri in the transcript of the meeting of the Service Committee of March 26, 2020, p. 24), required mobilizing the ISA in order to provide a quick, effective response to the significant challenge of  preventing the spread of the coronavirus, and permitted authorizing it for that purpose by virtue of sec. 7(b)(6) of the ISA Law.

27.       We should emphasize that not every threat to public health can be deemed a severe, imminent danger to the citizens of the state. However, the country’s situation following the outbreak of the coronavirus – which presents an exceptional challenge to the health system, and comprises devastating consequences in other areas, first and foremost, the economic security of far too many of the country’s families – justifies the finding that the current crisis passes through that narrow gate that permits the rare, exceptional expansion of the ISA’s authority by virtue of sec. 7(b)(6) of the Law. The Legal Advisor of the Service Committee aptly summarized this in stating: “It cannot be said that the ISA cannot be assigned this task in the framework of its purpose as established by law, when we are concerned with a serious, exceptional and unprecedented event, and the situation in which the state now finds itself. But this must be done with restraint, with sharp clarification that we are concerned with an exceptionally extreme situation, while emphasizing the fact that this authority is not at the core of the classic role of the Service, and that it cannot serve as a precedent for the future” (transcript of the Service Committee session of March 30, 2020, p. 3).

 

Authorizing the ISA by means of a Government Decision for contending with the Coronavirus Epidemic

28.       The next issue that must be addressed concerns the question whether the path chosen for the purpose of activating the ISA, and employing it for confronting the coronavirus is the appropriate path, or whether that authorization should be given by means of primary legislation. In this regard, Adalah and the Joint List argued that authorizing the ISA to conduct widespread tracking of citizens for civilian purposes contradicts the principle established in the Rubinstein case (HCJ 3267/97 Rubinstein v. Minister of Defense [3]) according to which there is an interpretive presumption that the legislature did not intend to authorize the executive branch to establish primary arrangements – i.e., arrangements that enshrine general policy and fundamental criteria in matters that violate basic individual rights or other matters of primary importance (HCJ 4491/13 Academic Center of Law and Business v. Government of Israel [4], para. 26, per President Grunis (hereinafter: the Academic Center case); Yoav Dotan, Non-Delegation and the Revised Principle of Legality, 42 Mishpatim 379, 414 (2012) (Hebrew)) – in the absence of express authorization by the legislature permitting the executive branch to establish a primary arrangement in a particular matter (the Academic Center case, para. 26, per President Grunis).

29.       The Enabling Decision does, indeed, establish a primary arrangement in substance, that permits the ISA to carry out widespread “contact tracing” of the state’s citizens and residents in order to protect public health and prevent the spread of the epidemic. This decision infringes basic rights, primary among them the right to privacy – a violation cannot be denied, as will be explained below – and it also expands the involvement of a preventive security service to matters that are civilian in nature. Therefore, the question is whether sec. 7(b)(6) of the ISA Law expressly permits expanding the authorities of the ISA as established in Government Decision No. 4950.

            It has been held that the urgency of the arrangement can have implications for the level of explicitness sufficient for delegating authority to the executive to establish primary arrangements (see: HCJ 4374/15 Movement for Quality Government v. Prime Minister [5], para. 61, per Justice N. Sohlberg). Having found that the outbreak of the crisis met the narrow test for the existence of a severe and imminent threat to the state’s citizens and residents, and particularly in view of the urgency inherent in activating the arrangement as pointed out by the professional entities in the Ministry of Health, I am of the opinion that at the time the Government decision was made, the authorization granted under sec. 7(b)(6) of the ISA Law was sufficiently explicit, and therefore, the decision is not repugnant to the primary arrangements principle. As noted, as it presently stands, the decision will remain in force until April 30, 2020. Can it be held that the force of the Enabling Decision can be extended again, rather than address the role of the ISA in the coronavirus crisis in primary legislation?

            In my opinion, the answer is no.

30.       When we are concerned with an arrangement of a temporary character, that was defined as limited in time when it was established, the need to reexamine the process for enshrining that arrangement, and the question of the sufficiency of the authorization upon which it was based, arise every time an extension of its force is sought. In the present matter, the weight that attaches to the urgency of the executive’s need to arrange the matter in a Government decision attenuates over time. This is particularly the case inasmuch as several weeks have passed since Decision No. 4950 was made, during which the Knesset could have conducted a substantial debate, and could have properly enshrined the authorization of the ISA in primary legislation. This fact tips the scales toward the conclusion that the authorization by virtue of sec. 7(b)(6) of the ISA Law, which relies upon the ambiguous term “essential national security interests of the State”, cannot provide a sufficient basis for so significant an expansion of the ISA’s activity over time without the legislature addressing the issue in the framework of primary legislation (see and compare the Rubinstein case [3], which held that sec. 36 of the Defense Service [Consolidated Version] Law, 5746-1986, which grants the Minister of Defense authority to exempt a person from military service “for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons”, could not serve as sufficient authority for granting comprehensive exemptions to yeshiva students “for whom Torah is their calling”). This conclusion is brought into sharper view in the present case in light of the Government’s notice in these petitions that it is currently considering the possibility of relying upon sec. 7(b)(6) of the ISA Law for the purpose of a further expansion of the ISA’s activities in the framework of confronting the coronavirus epidemic.

31.       We would emphasize that the question of the “proper path” for addressing the authorization of the ISA is not a technical matter that can be taken lightly. In a representative democracy, in which the people are the sovereign, “decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions” (the Rubinstein case [3], p. 108 [para. 22, per President A. Barak]). This basic principle is of particular importance in Israel, where there is an ongoing process of strengthening the executive branch at the expense of the legislative branch (Daphne Barak-Erez, Citizen-Subject-Consumer: Law and Government in a Changing State, pp. 42-43 (2012) (Hebrew)). An additional advantage to conducting a legislative process was well expressed by Justice D. Dorner in HCJ 5936/97 Lam v. Dal [6], 864 [para. 9]):

… generally speaking, the legislative process in the Knesset is more complex, protracted and expensive than the administrative process.  Nonetheless, efficiency is not necessarily an advantage where there is a question involving infringement of the freedom of occupation.  It is precisely the “cumbersome” nature of primary legislation and the requirement of a majority of the people’s representatives in order to pass a statute which provide a kind of institutional guarantee that basic rights will not be violated except where necessary.

 

            An up-to-date example of this can be seen in the developments described at the beginning of this opinion in regard to the legislative steps taken in order to enshrine the authorities that had been granted to the police in emergency regulations promulgated by the Government, which authorized the police to obtain location data from the telecommunications companies of persons required to remain in isolation. The Bill passed a first reading, but pursuant to the opinion of the Knesset Legal Advisor, the Arrangements Committee did not permit holding all three readings that day. In the course of preparing the Bill for a second and third reading, four in-depth meetings were convened by the Foreign Affairs and Defense Committee, which invited experts in the field of privacy protection, public health experts, and civil society organizations. In view of the reservations expressed in the meetings, the Government requested that the Bill not proceed at this time, the Police Regulations elapsed, and the police location-tracing of those required to be in isolation ceased. These developments illustrate the clear advantage of conducting a full legislative process in the Knesset, even at times of emergency, and particularly when a violation of individual rights is concerned.

32.       All of the Respondents insisted that primary legislation presents difficulties under the circumstances, primarily because it can permanently enshrine an exceptional authority and thus create a problematic precedent for the future. However, we should bear in mind that primary legislation can also be enacted as a temporary order that is limited in time and suitable for the moment. Thus, in appropriate circumstances, a temporary order – which constitutes primary legislation that is temporary by definition – can provide a proper, appropriate solution, in general, for legislation in a situation characterized by a lack of information and frequent change (see: Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            To this we should add the fact that the current Government – the 34^th Government – serves as a caretaker government whose powers, in general, are more limited than those of a regular government (HCJ 7510/19 Orr-Hacohen v. Prime Minister [7], para. 10). Indeed, the Service Committee of the newly sworn-in Knesset is conducting close, continuous parliamentary oversight – which has even led to the introduction of changes to the ISA’s authorities under the Enabling Decision. However, the temporary Service Committee, composed of a small number of Knesset Members, cannot serve as a substitute for 120 elected Knesset members. Moreover, it should be borne in mind that, as a rule, the meetings of the Service Committee are classified. In the present matter, the Services Committee did, in fact, decide that three of five of its meetings on the Enabling Decision would be open to the public, and representatives of the public, academia, and civilian and security bodies were heard. That is praiseworthy, but it is an exception that is not characteristic of the regular work procedures of the Committee.

33.       Under the unique, exceptional circumstances that developed, and especially given the timeframe imposed by the rapid spread of the coronavirus, which did not allow for initiating primary legislation in order to address the role of the ISA in the crisis, I am of the opinion that the decision to act under sec. 7(b)(6) of the ISA Law was lawful. However, due to the time dimension, which, as noted, constitutes a significant factor in regard to the possibility of expanding the ISA’s activities by virtue of the said sec. 7(b)(6), and in view of the fact that the arrangement established by the Enabling Decision constitutes a primary arrangement in substance, we cannot but conclude that if the ISA’s continued involvement is required in order to stop the epidemic even after the force of the Enabling Decision lapses on April 39, 2020, then the Government must take steps to establish the basis for such involvement in primary legislation in order to allow for the participation of Knesset Members from all the factions in the decisions related to this important issue. Such legislation should be provisional in nature, and should be enacted as a temporary order.

34.       However, as the attorney for the Knesset Respondents emphasized in the hearing, exhausting the legislative process demands time. Under these circumstances, if the Government continues to be of the opinion that authorizing the ISA for the tasks imposed upon it is still required, the Knesset should be allowed to proceed with the legislation in expedited, but not hasty proceedings that will allow for public comments and appropriate deliberations. Nonetheless, and given the fact that the Enabling Decision will expire on April 30, 2020, I am of the opinion that if the legislative process will move forward, it will be possible to extend the force of the Enabling Decision for a short additional period, not exceeding a few weeks, for the purpose of completing that process.

 

Before concluding – On Violating the Right to Privacy

35.       Having found that the Enabling Decision can no longer be relied upon for the purpose of providing for the ISA’s involvement in the coronavirus crisis after the decision expires, there is no need to examine whether the Enabling Decision meets the proportionality requirement. Nonetheless, inasmuch as the parties argued this point at length, I think it proper to make a few observations in regard to the proportionality of the infringement of the right to privacy caused by the Enabling Decision.

36.       Undeniably – and the Respondents all concede this – the Enabling Decision leads to a serious violation of the right to privacy and intimacy. This right, which achieved constitutional status upon the enactment of Basic Law: Human Dignity and Liberty (sec. 7 of the Basic Law), and was enshrined in other legislation even prior to that, most prominently in the Protection of Privacy Law, 5741-1981, and was recognized in case law as one of the most important human rights (see: CrimA 1302/92 State of Israel v. Nahmias [8], 353; CA 439/88 Registrar of Databases v. Ventura [9] 835). Moreover, on more than one occasion, the case law has stated that the right to privacy “is one of the freedoms that shape the character of the Israeli regime as democratic” (LCA 2558/16 A. v. Claims Officer of the Ministry of Defense [10], para 39, per Justice D. Barak-Erez;  and see: AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority [11], para. 41, per Jusitce E. Arbel). Similarly, my colleague Justice N. Sohlberg wrote in LCA 8954/11 Doe v. Doe [12], 740 [para. 84]:

The democratic regime also requires the existence of the right to privacy. The existence of a private living space that is not under the watchful eye of the state is vital to the existence of a pluralistic society which gives freedom to the variety of voices amongst it. Political criticism will not emerge where human lives are monitored by various means. The existence of a private space is essential for the development of unique positions which can later gain political expression … And note, the right to privacy does not merely serve the person as a person. It has a broad social significance, over and above the right of the individual. Its value is great and important for the mere existence of human society.

 

37.       In the present matter, the Chair of the Service Committee, Knesset Member Gabi Ashkenazi, addressed this issue in the course of the deliberations on the Enabling Decision. He observed that authorizing the ISA to employ its technological resources for “contact tracing” grants “the State authority to invade the private areas and spaces of the citizens of the State of Israel” (transcript of the meeting of the Service Committee of March 30, 2020, pp. 39-40). President Grunis once noted, as well, that such cases present “concern about the excess power of the State, which may gather extensive information about citizens and residents and may abuse such information” (HCJ 8070/98 Association for Civil Rights v. Minister of the Interior [13], 856). “This concern increases as the government acquires more sophisticated means, making more extensive infringement of privacy possible” (HCJ 3809/08 Association for Civil Rights v. Israel Police [14], para. 5, per President Beinisch).

38.       The violation of privacy in the present case is particularly severe for two primary reasons: The first concerns the identity of the entity that is exercising the means under discussion, that is, the fact that it is the ISA – the State’s preventive security service – that is tracking the State’s citizens and residents, and the second concerns the nature of the means chosen, viz., the fact that we are speaking of a coercive mechanism that is not entirely transparent.

            As for the identity of the entity employing the said means – employing tools that were developed for the purpose of fighting against hostile elements, and aiming them at the State’s citizens and residents who do intend it no harm is a step that might cause any lover of democracy to lose sleep. To this we may add that according to documents published by the Israel Democracy Institute (hereinafter: the Institute), the apparatus employed in Israel that will be used to locate contacts with validated patients is carried out with the aid of the preventive security organ, is exceptional on the international landscape (see: Tehilla Schwartz Altshuler & Rachel Aridor-Hershkovitz,  Surveillance During a Pandemic - International Comparison, (Israel Democracy Institute, March 25, 2020); Rachel Aridor-Hershkovitz,  A Comparative Survey of Europe and the United States – Contact Tracing as a Means for Fighting the Coronavirus, (Israel Democracy Institute, March 31, 2020) (Hebrew)). This fact was not lost upon the Service Committee, which noted in this regard that the Government respondents must make a real effort to show the Service Committee “alternative tools like those available in other countries” (transcript of the meeting of the Service Committee on March 30, 2020, p. 40).

            As for the nature of the chosen means – in order to examine the level of conformity of the mechanism established in the Enabling Decision to the prevailing norms for protecting privacy in databases, we can turn to the legislation that treats of these subjects, and draw inspiration from comparative law in regard to accepted norms in the field of protection of privacy in the administering of sensitive databases (Michael Birnhack, Public Privacy by Design: The Case of Data Transfer to Political Parties, 12 Haifa Law Rev. 15, 25 (Hebrew) [English abstract]. An examination of the mechanism established in the Enabling Decision shows that there was a real effort to circumscribe and confine the infringement of privacy by adopting some of the primary norms prevailing in the field of protection of privacy of databases (see, e.g: secs. 5,7,9,10,15 and 16 of the Enabling Decision). However, the consent of the individual to collecting the information is a “central pillar” of the protection of the right to privacy (Michael Birnhack, Private Space: The Right to Privacy, Law and Technology 252 (2010) (Hebrew)). This is so because when an authority collects information in regard to an individual without obtaining his consent, his autonomous ability to control the flow of information about himself is effectively expropriated (Michael Birnhack, Control and Consent: The Theoretical Basis of the Right to Privacy, 11 Mishpat uMimshal 9, 13 (2008) (Hebrew); and see the Joint European Roadmap towards lifting COVID-19 Containment Measures of April 15, 2020, which explains that the use of cellphone applications for “contact tracing” must be carried out with full respect for the principles of protection of privacy, including that their use be voluntary).

            In addition, when we are concerned with information collected by the security agencies, transparency should be very strictly observed. In this regard, we would emphasize that the shroud of secrecy surrounding the use of the mechanism in its current format – which derives from the desire to preserve secrecy in regard to the ISA’s abilities – is understandable. The same is true for the need to protect the privacy of people who test positive, and of those who came into contact with them (Amir Cahane, The Chilling Effect: Online Surveillance in the Days of Corona, CSRCL Blog (March 16, 2020)). However, there is some justification for the view that it is “desirable to remove much of the cloak of secrecy surrounding the ‘digital means’ […]. Even if these means in themselves must remain confidential (in order to maintain special intelligence collection capabilities)” (ibid.). Therefore, it would appear that in the present matter, the possibility of providing more information on the manner by which the information is collected should be considered, and the oversight mechanisms over its use should be expanded.

39.       It cannot be denied that despite the infringement caused by employing the ISA’s tracking mechanism, that mechanism has significant advantages. Its use makes it possible to locate persons who came into close contact with a Corona patient quickly, and that makes a real contribution to saving lives and protecting public health by severing the chain of transmission. This situation requires striking a balance between the severe infringement of individual rights – primarily, the right to privacy – that the mechanism inflicts, and the significant benefit it provides.

40.       Striking the necessary balance is significantly influenced by the point in time when it is made. At the beginning of the outbreak of the virus in Israel, the choice to use the means available to the ISA derived from the “need to provide an effective means at record speed, and that was provided by the Service a short time after the Ministry of Health requested its help” (para. 163 of the Government’s Response of April 12, 2020). However, with the passage of time, it could be expected that in view of the Respondents’ own position that we are concerned with a highly effective means whose harm is undeniable, a serious effort would be made to find alternatives like those adopted elsewhere in the world, among them, use of the “HaMagen” application developed by the Ministry of Health, which are all based upon obtaining the consent of the person being tracked. This was also made clear in the meetings of the Service Committee, in which it was stated that “the State is obligated, together with its use of this exceptional means, this unprecedented means by the Israel Security Agency whose role is different and that was established for another purpose, to examine other, different alternatives” (transcript of the meeting of the Service Committee of March 30, 2020, p. 40). The Service Committee even suggested that seeking an alternative to the said means should be carried out by a competent professional entity that would conduct an organized study with the cooperation of experts in the field (ibid.).

41.       Indeed, the efforts to locate an effective alternative must continue uninterrupted. This conclusion can also be learned from the Enabling Decision itself. Section 13 states that “over the course of the period when this decision is in force, the minister of Health will consider the need for continued recourse to the Service, bearing in mind the restrictions upon the public’s activity imposed by the Government, or the existence of alternative possibilities for achieving the objective of the decision”. This provision reflects the understanding that in view of the extraordinary nature of the means currently in use, the government authorities must always consider whether the immediate needs still justify the severe means that it is employing. The Service Committee addressed this in stating:

Over the course of all the deliberations, the Committee stated that it was not comfortable with the use of the tool, and that it views it as something temporary. I find the need to state that again. The entire situation is exceptional – so we are permitting it with constraints and balances. But if it goes on, we will not be able to continue with this situation. We are not hiding this. We are saying this to everyone concerned. This is not the primary purpose of the ISA. It was not created for this purpose. The State will have to find alternative solutions, significantly reduce the use, or stop it as soon as possible (transcript of the meeting of the Service Committee of March 31, 2020, p. 34).

 

42.       In seeking such an alternative, consideration must be given to the substantive flaws in the current mechanism, and must particularly consider whether it is possible to achieve the necessary, important advantages by means of a transparent, voluntary mechanism.

 

The Journalists Union Petition

43.       The Journalists Union’s petition argues that the powers granted to the ISA in the Enabling Decision violate freedom of the press and the confidentiality of journalistic sources. It further explains that the problem does not end with the question of whether there is actually a technical fear of exposing of sources, but that the very use of a mechanism that affords a preventive security organization a possibility of tracking the “technological information” in all that regards journalists creates a chilling effect that could deter their sources.

44.       In the course of the hearing before us on April 16, 2020, we suggested that the Government Respondents consider a path agreed to by the journalists, by which a list of journalists holding press credentials would be given to the Ministry of Health, and that the Ministry would ask a journalist who tests positive for the virus to consent to providing his details to the ISA. If such consent be given, the mechanism would operate in the usual way. If the journalist would refuse, he will be granted 24 hours to petition the court for an order preventing the transfer of his data to the ISA. At the same time, he will undergo an individual epidemiological investigation, and will be asked to sign a declaration that he undertakes to inform any journalistic sources with whom he was in contact over the 14 days prior to his diagnosis. The Government Respondents considered the suggestion, and informed us, on April 20, 2020, that they could not agree to it. Instead, they offered a different path to which the Journalists Union did not agree.

45.       One cannot overstate the importance of freedom of the press in a democratic state, and preserving this principle is of particular importance during a national crisis of the type we are currently experiencing. In the hearing, the Journalist Union’s attorney pointed out that at this time of “social distancing”, most contacts with sources are conducted by telephone, and do not involve physical meeting. In the ex parte hearing, it was clarified that physical meeting is necessary for “contact tracing” by means of the mechanism employed by the ISA. Therefore, adopting the path that we have now suggested is, in any event, of limited scope, and is not expected to raise and particular difficulty. That being so, I am of the opinion that it should be applied as of the date of this judgment, and that we can expect that an arrangement in this spirit will be included in future legislation.

 

Conclusion

46.       These are unusual times. The outbreak of the coronavirus, and its spread throughout the world, have changed how we live. Under these unique, exceptional circumstances, the Government made a decision to employ technological means at the disposal of the ISA in order to perform epidemiological investigations, with the purpose of locating those who came into close contact with persons who had tested positive for the virus, and to inform them that they had to isolate themselves at home. The ISA was granted authorization by virtue of sec. 7(b)(6) of the ISA Law, which permits the Government, with the consent of the Services Committee, to authorize the ISA to perform additional tasks to those set out in the ISA Law for the purpose of protecting and advancing “essential national security interests of the State”. In my view, the term “national security” permits authorizing the ISA to perform tasks in areas that are not at the core of security activity in the narrow sense, but such authorization requires that there be a severe, imminent danger to the citizens and residents of the state or its regime. This test sets a high bar that requires periodic examination of the situation. At the point in time when the Enabling Decision was made, the need to contend with the outbreak of the coronavirus epidemic did, indeed, meet the said test. However, for the reasons stated above, if the ISA’s involvement is to continue after the date set in the Enabling Decision – i.e., April 30, 2020 – its authority to do so must me grounded in appropriate, primary legislation, such as a provisional temporary order. This is so given the fact that the means chosen by the State in the framework of the Enabling Decision is invasive and cannot be taken lightly. The choice to employ the preventive security organization of the state for tracking persons who intend it no harm, without the consent of those being tracked, raises particular difficulty. These extraordinary means were adopted in regard to a rare, extraordinary crisis by any metric. We must take every precaution that the unusual events with which we are currently contending will not lead to a slippery slope of using extraordinary, invasive means without justification.

47.       Therefore, if my opinion be accepted, I would recommend to my colleagues that we grant the petitions in the sense that, subject to what is stated in para. 34, above, as of April 30, 2020 it will not be possible to authorize the ISA to aid in confronting the coronavirus outbreak by means of the mechanism established under sec. 7(b)(6) of the ISA Law, and that should the State seek to continue to employ the means at the disposal of the ISA, it must take steps to establish that authorization in primary legislation. I would further recommend to my colleagues that in regard to journalists, the outline set out in para. 44, above, will be employed.

 

Justice N. Sohlberg:

1.         I concur in the considered opinion of my colleague the President, as well as with the opinion of my colleague the Deputy President in regard to the precautionary principle. On the margins of the matter, I will note an addition and register a reservation.

2.         Authorizing the ISA to collect, process and use “technological information” in regard to persons testing positive for the coronavirus, and persons with whom they were in close contact, falls – by the language of the law and its legislative purpose – within the compass of sec. 7(b)(6) of the ISA Law, inasmuch as it is intended “to protect and advance other essential national security interests of the State”, but that, only when there is an imminent, severe danger to the state’s citizens and residents. The Corona epidemic indeed presented such a danger. Just as IDF soldiers are working to offer help in the city streets and in the homes of citizens, so the members of the ISA were mobilized to confront the harm of the coronavirus. The pressing needs of the hour required that such action be taken. The involvement of the ISA, and its attendant the shroud of secrecy, are “not pleasant but not terrible” (in the lenient view), and in any case not intolerable (in the strict view) due to the exigencies of the situation. In any case, the weeks that have passed, and the danger that is no longer what it was, require that we return to the “high road”, i.e., primary legislation, preferably as a temporary order, to allow for the participation of all of the Knesset members in the required decisions. The Government’s Enabling Decision will lapse in the coming days, and if the legislative process begins before that, it will be possible to extend the Government’s decision for the period required for a proper process by a legislature that proceeds quickly.

3.         Without detracting from my colleague’s correct statements on the right to privacy and intimacy, I would like to this: At the present time, when privacy and intimacy are notoriously trampled and “location data” are transmitted in every direction, it would seem to me that the violation of the “marginal utility” of privacy caused by the involvement of the ISA, in the manner that it is carried out, can be tolerated. Indeed, in these difficult times, all are required to show general civic responsibility and solidarity. It is reasonable to assume, and recent opinion polls indeed show a humane readiness to relinquish some measure of privacy in order to aid in the early detection of those infected. There is a clear willingness to stand strictly upon individual rights, due to a sense of responsibility for others and for society.

4.         A person with the coronavirus who has infected those around him – family, congregation, friends – suffers greatly. The Government Respondents correctly state that “the dignity of every person, as such, is expressed in his willingness to defend his family and himself, to act altruistically, and to aid in the defense of others” (para. 219 of the Government’s Response). Indeed, more than the violation of privacy, we have here protection of human dignity and liberty, the saving of one’s own life and that of his neighbor. And note: there is more work to be done to protect and ensure privacy and intimacy, and we must do it, but not necessarily in the given crisis that pits the right of privacy against the right to life and health of people and of the entire public – a life-threatening danger in the plain sense – and a real fear for Israel’s economy.

5.         As for the Journalists Union’s petition, my colleague the President and my colleague the Deputy President are of the opinion that there should be a special approach that would include a 24 hour hiatus during which a journalist who tests positive for the coronavirus can petition the court for an order that would prevent transferring his particulars to the ISA (paras. 44-45 of the opinion of the President; para. 7 of the opinion of the Deputy President). I hold a different view in this regard. It would seem to me that with all due respect for the importance of freedom of the press and journalistic confidentiality, inasmuch as the principle of journalistic privilege (which is, as we know, a relative privilege) is rooted in case law, it would appear to me to be problematic to enshrine the exception to the principle in legislation. Moreover, the path that my colleagues require means denying the right of those exposed to the ailing journalist to be notified as soon as possible that they were exposed to the danger. Such a violation of the right to health – theirs and of those close to them – is unjustified. The right to life outweighs a fear of a violation of freedom of the press. I am not an expert on leaks, but it would appear reasonable – and so the Journalists Union’s attorney affirmed – that most of a journalist’s contact with sources is conducted by telephone. There is no fear of exposure in regard to such sources. The only fear, and it is very remote, is of the exposure of a source who physically meets with the journalist. And why is that a remote fear? Because the data processing mechanism operates automatically, and as a rule, the files produced are not opened except when a person who receives a text message from the Ministry of health (informing him that he must self-isolate due to exposure to a person who tested positive for Covid-19) questions the accuracy of the information, or in the course of an examination of random samples. Even then, there is only a miniscule chance that such a random examination might specifically hit upon the file of a journalist of such fame that his name will be recognized by the person performing the examination. When the fear of exposing sources is so remote when we are concerned with some 5,000 journalists, and when the danger of a chain of transmission is real, it seems to me that the Government Respondents fulfilled their duty with the path they suggested (paras. 6 and 7 of the Response of April 20, 2020), of a human epidemiological investigation that can be performed in regard to a journalist who tested positive for the coronavirus, in addition to the examination by the ISA’s mechanism whose results will not be exposed to anyone. I will suffice with that.

6. As stated, I concur in the opinion of my colleague the President, subject to the above.

 

Deputy President H. Melcer:

1.         I concur in the comprehensive opinion of my colleague President E. Hayut.

            However, in view of the importance of the matters under discussion, I will allow myself to add several insights and emphases.

 

The Question of Authority

2.         The question presented to us was whether the Israel Security Agency (hereinafter: ISA or the Service) could be authorized to receive, collect, and process “technological information” concerning persons who tested positive for Covid-19 and those who were in close contact with them, and transfer that information to the Ministry of Health.

            The Respondents argued that the matter fell within the compass of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter: the ISA Law), which states as follows:

For the purpose of subsection (a) [which establishes the purpose of the ISA and its role – H.M.], the Service shall perform the following tasks:

[…]

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State.

            My colleague the President ruled that if the above conditions were met (a Government decision with the consent of the Knesset Secret Services Committee), and in view of the current extraordinary, special situation resulting from the coronavirus epidemic, then while there was a severe, immediate danger to the state’s citizens and residents due to the spread of the virus, it was possible to make limited (in time and substance) use of that subsection, and to make the Enabling Decision and its accompanying arrangement (hereinafter, together: the Enabling Decision).

            Under the circumstances, I concur with this limited ruling, as well as with the reasoning of my colleague the President and what derives therefrom, i.e., that for the purpose of fulfilling this role, the ISA (by means of its staff) is authorized to receive, collect and process “technological information”, and transfer it to those duly authorized in the Ministry of Health, in accordance with secs. 8(a)(1) and (2) and (3) of the ISA Law, and all bearing in mind that the said special activity is intended – under the time, event, substance and place conditions – to protect and advance essential national security interests of the State (that deviate from national security in the narrow sense).

            My colleague Justice N. Sohlberg notes in this regard – by way of comparison – the activity of IDF soldiers in the city streets and in citizen’s homes at this time, and I would like to point out that in order to permit such activity – when necessary – at the time, in 1995, legislative amendments were made (in sec. 18 of the Law and Administration Ordinance, 5708-1948, and sec. 26A of the Defence Service (Consolidated Version) Law, 5746-1986 (hereinafter: Defense Service Law)). See: Defence Service (Amendment No. 7 and Temporary Order) (Service in the Police and Recognized Service) Law, 5755-1995 (hereinafter: Amendment 7).

            In accordance with Amendment 7, sec. 18 of the Law and Administration Ordinance states that the armed forces of the State “shall have authority to do all lawful and necessary acts for the defence of the State and for attaining its national-security objectives” (the emphasized words were added by Amendment 7 in 1995). Pursuant to that, the said Amendment also added sec. 26A to the Defence Service Law, which provided for the possibility of recognized service, that the Minister of Defense would establish by order, with the consent of the Government and the Knesset Foreign Affairs and Defense Committee, in one of the following:

(2)       Service in military units in the framework of a government ministry or organizational framework of a public body and under the supervision of a government ministry, designated for the attainment of a military- national objective in one of the following areas: immigration and absorption, education, health, protection of the home-front or voluntary activities for I.D.F. soldiers, all provided that the Minister of Defense is persuaded, having consideration for the circumstances at that time, and in consultation, as the case may be, with the Minister of Immigrant Absorption, the Minister of Education, Culture and Sport, or the Minister of Health, and with the Minister of Justice, that if such activity is not performed by those designated for military service in regular service, the objective will not be attained as required.

            For a detailed discussion of Amendment 7 and the possibilities it presents, see: my opinion in HCJ 6298/07 Ressler v. Knesset [15]; my article: The IDF as the Army of a Jewish and Democratic State, in Volume in Honor of Prof. Amnon Rubinstein – Law and Man, 14 Mishpat v’Asakim 347, 358-364 (Sept. 2012) (Hebrew).

            We thus find that in special, exceptional circumstances, and in a defined situation, it is possible to authorize the IDF and the ISA to act for the purpose of attaining national-security objectives that go beyond the defense and security of the State (in the narrow sense).

3.         Moreover, sec. 7(b)(6) of the ISA Law, together with the provisions of the ISA Law that I noted in para. 2, above, provides express authority to perform the activities under discussion in the petitions (under the conditions we established) – in the sense of the first condition of the Limitations Clause in sec. 8 of Basic Law: Human Dignity and Liberty (that is, that the violation be by a law, or by virtue of express authorization in such law). See the majority opinion in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [16] (hereinafter: the Mifkad Haleumi case).

            That case also provides an answer to the argument that the matter should have been arranged (if at all) in a primary arrangement (by primary legislation). Also see: my opinion in HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services [17]. However, in view of the significant dissent of President D. Beinisch and Justice E. Hayut in the Mifkad Haleumi case, it would seem to me that when the stage of pressing need for acting by virtue of sec. 7(b)(6) of the ISA ends (on April 30, 2020), it would be proper to arrange the matter – to the extent that it may still be relevant – in primary legislation by way of a temporary order, as recommended by my colleague the President and my colleague Justice N. Sohlberg, as long as such legislation meets all the other conditions of the Limitation Clause.

            I will now briefly turn to the matter of the proportionality of the path chosen and the arrangement set forth.

Examination of the Path Chosen and the Proportionality of the Arrangement

4.         The path chosen (authorizing the ISA by virtue of sec. 7(b)(6) of the ISA Law) was one of four alternatives examined, and that, after the Government had previously promulgated emergency regulations by virtue of sec. 39 of Basic Law: The Government.

            It seems to me that until the date set (April 30, 2020), that was, indeed, the preferable course under the circumstances. There are several reasons for this:

1. Emergency regulations do not require any “approval” (other than their promulgation by the Government, and submitting them to the Knesset Foreign Affairs and Defense Committee at the earliest possible date after their enactment – see: sec. 38(a) of Basic Law: The Government).
2. Emergency regulations, by virtue of sec. 39(c) of Basic Law: The Government, may alter any law, temporarily suspend its effect or introduce conditions, unless there be another provision by law (see, in this regard: sec. 12 of Basic Law: Human Dignity and Liberty). Here we should note, however, that after presenting the emergency regulations to the Knesset Foreign Affairs and Defense Committee, the Knesset may – by law or a decision of a majority of the members of the Knesset – revoke the emergency regulations (see: sec. 39(f) of Basic Law: The Government).

Thus, until the enactment of primary legislation in the form of a temporary order (if at all), there was an advantage to the Enabling Decision, due to the pressing need, inasmuch as it is within the framework of the ISA Law (without need for alter or suspend it), and it is subject to the review and oversight of the Subcommittee for Intelligence and Secret Services of the Knesset (hereinafter: the Service Committee), which acts by virtue of sec. 6 of the ISA Law.

At this point we should note that the Service Committee (chaired by MK Gabi Ashkenazi) admirably fulfilled its role in this regard, and conducted in-depth deliberations (some of which were open to the public) on the Enabling Decision that is the subject of the petitions, and added restrictions, changes, and various duties of notification (it also instigated the process that led to halting the advancement of the law to amend the Telecommunications Data Law – see para. 1 of the opinion of my colleague the President).

5.         Without detracting from what is stated in para. 4, above, concerning the choice to follow the course of an enabling decision until now – the proper course at present, to the extent that it may be needed, is that of a temporary order enacted as primary legislation that must meet the requirements of the Limitations Clause (inasmuch as we are concerned with a serious violation of the right to privacy, which is constitutionally guaranteed in sec. 7(a) and (d) of Basic Law: Human Dignity and Liberty, as well as other constitutional rights). This entire matter must be considered by all the members of the Knesset in their legislative capacity (compare: Ittai Bar-Siman-Tov, Parliamentary Activity and Legislative Oversight During the Coronavirus Pandemic – A Comparative Overview (2020); Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            This is the place to make a few observations on the path established – which is the subject of these proceedings – without deciding upon the matter for the future, inasmuch as Prof. Sigal Sadetzky, Head of Health Services in the Ministry of Health, who appeared before us, informed us that the possibility of continuing, and even expanding the arrangement is being considered.

6.         The arrangement adopted in the Enabling Decision (after the changes introduced by the Service Committee), and the date established for its termination (April 30, 2020) met the criteria for proportionality under the Limitations Clause.

            In the framework of the third component of the proportionality requirement, I previously recommended the Precautionary Principle, which under certain circumstances is the lesser evil, inasmuch as better safe than sorry (see my opinion in HCJ 466/07 Gal-on v. Attorney General [18] (hereinafter: the Galon case); and see the opinion of my colleague Justice N. Sohlberg in HCJ 7040/15 Hamad v. Military Commander [19]; LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality [20], para. 37 and the references there; HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection [21], per Justice M. Mazuz writing for the Court).

            In the current emergency situation due to the Corona epidemic (as opposed to the disagreements that arose on the Gal-On case in this regard), it would seem that here and throughout the world, all agree that the authorities may act in accordance with the Precautionary Principle, and they are, indeed, doing so. This principle takes the view that in order to contend with a problem created by a gap between existing knowledge at a given time and the tremendous potential and uncertain harm that may be caused by some activity if no adequate precautions are adopted, the authorities (the legislature or the executive) should be permitted to adopt measures intended to prevent the catastrophe. This is the case when there is a perceived significant threat of wide-spread, irreversible harm, even if it is only of low probability, and when there is no proven scientific certainty that the harm will be realized (the Gal-On case, paras. 34-42 of my opinion [paras. 17-24 of the English summary].

            Nevertheless, even the said principle requires setting limits, or as my colleague Justice E. Rubinstein expressed it in the Gal-On case, cautions must be adopted even in regard to the Precautionary Principle. In order to pass the proportionality test stricto sensu (or “the relativity test”, as my colleague Deputy President E. Rivlin called it in CrimApp 8823/07 A. v. State of Israel [22], and Prof. A. Bendor in his article Trends in Israeli Public Law: Between Law and Judging, 14 Mishpat uMimshal 377 (2012)) that caution requires, in my view, not to continue with the Enabling Decision (other than for a short period after April 30, 2020, as recommended by my colleague the President in para. 34 of her opinion), and to replace it (if at all) by a temporary order in primary legislation.

            There are a number of reasons for this:

1. Over and above the need for immediacy, use of the Precautionary Principle requires – beyond immediacy – parliamentary oversight even in emergency situations (this is so even in the opinion of critics of the principle, like Prof. Cass R. Sunstein, in his book Laws of Fear: Beyond the Precautionary Principle, p. 214 (2005)).
2. The existence of alternative, more proportionate means for achieving the same or similar purpose must be examined (both in terms of the second subtest for proportionality under the Limitations Clause, and under the third subtest of proportionality stricto sensu).
3. We must beware of sliding down the “slippery slope” in the use of the means that will be permitted or their continuation (see: Elyakim Rubinstein, On the Danger of the Slippery Slope, Parashat HaShavua, no. 65 (Ministry of Justice) (Hebrew); Dr. Menachem Finkelstein, The Slippery Slope, Judge Baruch Judges Bulletin, no. 4, p. 1 (Feb. 2011) (Hebrew), and see: AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority [23], para. 7(1) of the opinion of my colleague Justice E. Rubinstein, who stated:

Open for Me an opening like the eye of a needle and I will open for you an opening that wagons and carts can pass through (Shir HaShirim Rabba 5).

            In the hearing in the present matter, Prof. Saditzky explained that serological tests will be approved in the next few days, and that they may be able to replace – by mass testing (with immediate results) – the need to locate those who were in contact with persons who tested positive (in this regard we would emphasize that until now, due to the lack of sufficient test kits, and at the instruction of the Ministry of Health, not everyone who was located by the ISA as having been in contact with a person who tested positive was necessarily tested).

            Thus, given that until now there was no available alternative for achieving the objective of locating those who had come into contact with persons who had tested positive for the coronavirus, or to identify those who had contracted the virus, those who had not, and those who had developed antibodies, and the ISA had the ability to use its resources to help in this area (and thus, the situation differs in regard to what the ISA stated in the Gal-On case), it was possible to utilize the mechanism at the ISA’s disposal for this purpose, since it met all three criteria of proportionality, including the third subtest of relativity, inasmuch as: One who saves a single life “is considered as if he has saved an entire world” (Mishna Sanhedrin 4:5; Maimonides, Mishne Torah, Laws of the Sanhedrin 12:3).

            However, it would be appropriate to reexamine the entire complex (which was also the recommendation of the Service Committee), and this should be done by the entire Knesset in the timeframe set by my colleague the President in para. 34 of her opinion, while considering the alternatives that have been created in the meantime. In any case, any arrangement that may be made in the future (if at all) should comprise, inter alia, a provision that no material obtained as a result of the ISA’s activity for the purpose of identifying persons with the coronavirus will be used for any criminal investigation and will not serve as evidence in any trial.

            This framework should also address the matter of journalistic privilege, which was raised in the Journalists Union’s petition, which I will address in the following subsection.

 

The Issue of Journalistic Privilege

7.         Journalistic privilege raises a special problem, inasmuch as the arrangement deriving from the Enabling Decision may infringe the confidentiality of sources that is fundamental to investigative journalism in general, and at present, in particular, as well as freedom of the press (Dr. Yisgav Nakdimon, Journalist’s Privilege (2013) (Hebrew)).

            In the present matter, I believe that the approach we have recommended, as set out in paras. 44 and 45 of the opinion of my colleague the President, is appropriate, and it would be appropriate to adopt it in any additional arrangement that may be made (if at all), and should be followed from now. This is required by the rule established in HCJ 3809/08 Association for Civil Rights v. Israel Police [14], mutatis mutandis to the present matter, (in that case, I was of the minority opinion that the rule should be extended to all case of privilege, and in the course of the hearing, it became clear that this is indeed the practice in regard to members of Knesset). My colleague Justice N. Sohlberg’s fear for the health of the source will, in any case, be resolved, inasmuch as the approach requires that the journalist himself warn his source.

 

Conclusion

8.         This case raised new issues that the world, the medical profession, and the legal field had not yet encountered. In this judgment, we tried – with the help of the authorities who addressed the entire issue and the accepted legal principles – to treat of a situation and provide solutions that, on the one hand, would save lives, while on the other hand, would protect the accepted constitutional rights by means of appropriate balancing and proportionality. We may hope that we will no longer have need for all of these in the foreseeable future, and that we will see better days. Let us hope.

 

            Therefore, it is unanimously decided to grant the petitions in HCJ 2109/20, HCJ 2135/20, HCJ 2141/20 in the sense that as of April 30, 2020, it will not be possible to authorize the ISA to aid in contending with the outbreak of the coronavirus by means of the mechanism established in sec. 7(b)(6) of the ISA Law, and that if the State seeks to continue to employ the means at the ISA’s disposal, it must act to establish such authority in primary legislation. To the extent that such legislation will progress, it will be possible to extend the force of the Enabling Decision for a short, additional period that shall not exceed a few weeks, in order to enable the completion of that process.

            It is further decided my majority decision (President E. Hayut and Deputy President H. Melcer concurring, and Justice N, Sohlberg dissenting) to grant the petition in HCJ 2187/20 in the sense that, in regard to journalists holding press credentials, the arrangement set out in para. 44 of the opinion of the President will be followed.

 

Given this day, 2 Iyyar 5780 (April 26, 2020).

 

 

           

 

 

 

 

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioner in HCJ 2141/20:                             Adalah – Legal Center for Arabl Minority Rights in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

Petitions for order nisi and interim order

 

Decision

 

1.         These three petitions challenge the Government’s decision to promulgate two sets of emergency regulations: (1) Emergency Regulations (Authorization of the Israel Security Agency to aid in the national effort to limit the spread of the new corona virus), 5780-2020 (hereinafter: the ISA Regulations); (2) Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations). The regulations permit the collection, processing and use of “technological data” of persons who have contracted the new corona virus (hereinafter: the virus), in order to combat the spread of the corona epidemic.

2.         In a hearing on the petitions today – March 19, 2020 – serious legal issues were raised concerning – inter alia – the absence of parliamentary oversight of the process of promulgating the regulations and the manner of their implementation, as well as constitutional questions that require examination.

3.         The petitions in HCJ 2135/20 and HCJ 2141/20 were filed immediately prior to the time set for the Respondents to submit their response to the petition in HCJ 2109/20, which had been filed on the previous day. That being the case, the Respondents did not have sufficient time to prepare their written response to the arguments raised in these two petitions prior to the hearing. The Respondents requested that we permit them to submit a supplementary response in this regard. In view of the urgency of the matter, we order that it be submitted by Sunday at five p.m. In their supplementary response, the Respondents will address the following fundamental questions:

            (a)        Does the declaration of a state of emergency under sec. 38 of Basic Law: The Government also relate to emergency situations that do not arise from security concerns?

            (b)       Can the Israel Security Agency be granted authority to act in areas that do not concern state security by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002?

            (c)        Does sec. 39(d) of Basic Law The Government, which states: “Emergency regulations may not […] infringement upon human dignity”, impose an absolute restriction upon violating the right to human dignity, or is such a violation subject to the conditions established under sec. 12 of Basic Law: Human Dignity and Liberty?

4.         At this stage, we are making an interim order, stating:

A.        As regards the ISA Regulations – if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision.

B.        Without derogating from the above sec. A., the ISA Regulations will be implemented at this stage exclusively for the purpose of locating persons who were in the vicinity of persons with a positive laboratory result for nCoV, and in accordance with the classified directives presented to us ex parte, with the consent of the Petitioners, which were approved by the Attorney General.

C.        If a decision is made to impose a general closure before Tuesday, March 24, 2020, it will be possible to reexamine the need for implementing the authorities under the ISA Regulations and the compatibility of the interim order with that situation.

D.        At this stage, and until another order, there shall be no implementation of the authorities granted under the Police Regulations. In this regard, we would note that in the hearing before us, the Respondents informed the Court that, at this stage, the procedure mentioned in sec. 4(A2) of the Criminal Procedure (Enforcement – Authorities Telecommunication Data) Law, 5768-2007) (hereinafter: the Telecommunication Data Law), which was added to that law by virtue of the Police Regulations, had not been completed. Therefore, these regulations have, in any case, not been implemented. It was further explained that, at this stage, there is no intention to make use of the authorities granted to the police under these regulations by virtue of sec. 4(A1)(1)(a) of the Telecommunications Data Law.

5.         When the material mentioned in para. 3, above, ahs been collected, we will decide upon the how these all these petitions shall proceed.

Given this day, 23 Adar 5790 (March 19, 2020).

CrimA 9334/08

 

Appellant:               Emad Ali

 

v.

 

Respondent:                State of Israel

 

 

 

 

The Supreme Court

[ Nov. 23, 2011]

 

Before Justices M. Naor, E. Arbel, and Y. Danziger

 

Appeal of the judgment of July 1, 2008 and the sentence pronounced on Sept. 24, 2008 by the Beer Sheva District Court in CrimC 8237/06 per Judge Y. Zelkovnik.

 

Israeli Supreme Court cases cited:

[1]                    LCrimA 1178/97 Kahana v. State of Israel, IsrSC 51(3) 266.

[2]                    CrimA 7230/96 A. v. State of Israel, IsrSC 51(3) 513.

[3]                   CrimFH 2980/04 Oiku v. State of Israel, IsrSC 60(4) 34.

[4]                   CrimA 4596/05 Rosenstein v. State of Israel, IsrSC 60(3) 353.

[5]                   CFH 1558/03 State of Israel v. Assad, IsrSC 58(5) 547.

[6]                   CrimA 8831/08 State of Israel v. Alshahra (June 30, 2010).

[7]                   CrimA 9428/08 El Najar v. State of Israel (Dec. 12, 2008).

[8]       CrimA 3827/06 A. v. State of Israel (March 27, 2007).

[9]                   CrimA 6328/09 El Najar v. State of Israel (June 22, 2010).

[10]     CrimApp 1600/06 A. v. State of Israel  (March 5, 2006).

[11]     CrimA 6491/08 Bradville v. State of Israel (March 16, 2009).

[12]     CrimA 4043/05 State of Israel v. Bniat (Aug. 10, 2006).

[13]     CrimA 2985/10 Hamed v. State of Israel (Jan. 1, 2011).

[14]     CrimA 172/88 Vanunu v. State of Israel, IsrSC 44(3) 265 (1990).

[15]     LCrimA 9818/01 Biton v. Sultan, IsrSC 59(6) 554 (2005).

[16]     CrimA 163/82 David v. State of Israel, IsrSC 37(1) 622 (1983).

[17]     CrimA 9995/05 State of Israel v. Rabinowitz (Feb. 15, 2007).

[18]     CrimA 6613/99 Semirak v. State of Israel, IsrSC 56(3) 529 (2002).

[19]     CrimA 2285/05 State of Israel v. Hemed (Dec. 5, 2005).

[20]     CrimA 3687/07 Tochly v. State of Israel (Feb. 20, 2008).

[21]     CrimA 2180/02 Kassem v. State of Israel, IsrSC 57(1) 642 (2002).

[22]     CrimA 3944/08 Sha’aban v. State of Israel (June 18, 2009).

[23]     CrimA 1358/09 Dahar v. State of Israel (April 30, 2009).

[24]     CrimA 4352/08 A. v. State of Israel (March 23, 2009).

[25]     CrimA 6566/10 Veridat v. State of Israel (May 29, 2011).

[26]     CrimA 5225/03 Habas v. State of Israel, IsrSC 58(2) 25 (2003).

[27]     CrimA 5121/98 Yissacharov v. Chief Military Prosecutor, IsrSC 61(1) 461 (2006).

[28]     CrimA 8974/07 Honchian v State of Israel (Nov. 3, 2010).

[29]     CrimA 1746/00 Barilev v. State of Israel, IsrSC 55(5) 145 (2001).

[30]     CrimA 3477/09 State of Israel v. Hadad (Feb. 4, 2010).

 

Lower court cases cited:

[31]     CrimC (Beer Sheba) 8179/07 State of Israel v El Najar (July 9, 2007).

[32]   MApp 3403/08 (Beer Sheba Magistrates Court) State of Israel v. Harzallah (April 14, 2008).

 

Foreign cases cited:

[33]   S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept.7).

[34]   United States v. Yousef, 327 F.3d 56, §45 (2nd Cir. 2003).

[35]   United States v. Bowman, 260 U.S. 94 (1922).

[36]   United Sates v. Pinto-Mejia, 720 F.2d 248, 259 (2nd Cir. 1983)

[37]   United States v. Chua Han Mow, 730 F.2d 1308 (9th Cir. 1984).

[38]   United States v. Schmucker-Bula, 609 F.2d 399 (7th Cir 1980).

[39]   United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991).

 

 

Abstract

 

CrimA 9334/08 Emad Ali v. State of Israel

 

       The appellant was convicted in the District Court of weapons offenses (trading in weapons) and conspiracy to commit a felony. The offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State of Israel. The central question in the appeal was whether these “foreign offenses” (under sec. 7(b) of the Penal Law) constitute crimes against the security of the State of Israel for the purpose of extraterritorial jurisdiction.

 

In denying the appeal, the Supreme Court (per Justice M. Naor, Justice E. Arbel and Justice Y. Danziger concurring) held:

1.         As a rule, the area of application of Israeli criminal law is within the territory of the State. When we seek to apply this law to foreign offenses, we must be able to point to a “connecting link”, a “normative bridge”, between the law of the state and these offenses that were committed beyond the borders of the state, which will replace the territorial element

2.         Several jurisdiction-extending nexuses are accepted in most legal systems, including the Israeli legal system: an active personal nexus – between the perpetrator of the offense and the legal system; a passive personal nexus – between the victim of the offense and the legal system; a universal nexus – which relates to particularly serious offenses whose prevention is a matter of universal interest; a vicarious nexus  – which relates to offenses that Israel will address by virtue of a treaty between itself and another state; and the protective nexus – which concerns acts that have harmed or were intended to harm essential state interests, such as security, the regime or the economy.

3.        There is nothing in the first part of s. 13(a) of the Penal Law that defines the scope of the protective nexus. The question is whether the word “against” must be interpreted as referring only to offenses which by their nature are directed against national security, such as offenses specified in the relevant chapters of the Penal Law and the Prevention of Terrorism Ordinance. According to the purpose of s. 13(a), the interpretation according to which the protective nexus remains applicable to all acts which by virtue of their circumstances are directed against national security is to be preferred.

4.         Interpretation of the law in the criminal sphere is also purposive interpretation, in the framework of which one must examine the language of the law, as well as the goals and interests that the law is intended to realize. An interpretation of the language of the law that is favorable to the accused may nevertheless be rejected if it fails to optimally realize the purpose of the law.

5.         The statutory provisions regarding extraterritorial application by virtue of the protective nexus, as formulated prior to Amendment 39, applied the domestic law to every act that harmed or was intended to harm “the State” or important interests such as the economy of Israel and its security. The present formulation restricts the application of the law by virtue of the protective nexus to offenses that are directed against certain interests, and it no longer allows for the application of the law to “any” harm to the “state”. Despite the textual change, Amendment 39 did not reduce the scope of the protective nexus. Israel’s criminal laws continue to apply to a person who perpetrates an act which, according to its circumstances, harmed or was intended to harm the security of the state, as was the situation that pertained prior to the Amendment.

6.         The purpose of the protective nexus, particularly in the context of national security, lends support to the conclusion that the protective nexus is not confined to offenses that are intrinsically harmful to national security. The purpose of this nexus is a response to the need of the state to protect itself from deeds that are perpetrated outside its borders and that are directed against vital interests.

7.         The function of the protective principle is to protect important interests from various threats. Clearly, there are some deeds which, by virtue of their circumstances, present a real threat to the security of the State of Israel, even if they do not constitute “pure” security offenses like s. 111 of the Penal Law that prohibits the delivery of information to the enemy. Thus, for example, a person’s acts that constitute a link in the terrorism chain, whether they be the funding of the activities of a terrorist organization or the smuggling of weapons to that organization, constitute a concrete threat to security.

8.         The protective principle, when it is not restricted to a closed, specific list of offenses, allows for effective, focused action against those links in the chain of terror whose operational base is often to be found outside the territory of the State of Israel. The purpose of the Law, therefore, is best realized when the scope of the protective application is not confined to a list of specific offences that are intrinsically directed against national security.

9.         The penal provisions under which the Appellant was charged apply by virtue of the protective nexus. Therefore, the question of whether his acts are punishable in the territory in which they were perpetrated is immaterial. The protective nexus prevails, and the foreign law does not restrict its scope. This means that for the purpose of extraterritorial application by virtue of the protective nexus, there is no requirement of double criminality.

10.       Section 8 of the Criminal Procedure (Interrogation of Suspects) Law, 5762- 2002 states that if the suspect’s interrogation was recorded in writing, this record shall be in the language in which the interrogation was conducted, and if it is not possible to record the interrogation in the language in which it was conducted, a visual or audio record should be made. In our case, this requirement was not fulfilled. Such a defect can significantly reduce the weight of the confession, and can even affect its very admissibility. However, in certain circumstances, the weight of the statement may be judged on its substance in order to decide whether the record departs from the truth.

Justice Y. Danziger (concurring):

1.         As a rule, the case-law directs that notwithstanding the provision of s. 8(1) of the Interrogation of Suspects Law, where the court is convinced that even though the confession was not transcribed in the language in which the suspect was interrogated, it accurately reflects what the suspect said in his interrogation, the confession will be admissible and full weight may be attributed to it. This approach renders s. 8(1) meaningless. It is the direct continuation of the accepted approach in the case law of this Court prior to the enactment of s. 8 of the Interrogation of Suspects Law.

2.         It therefore appears that there has been no change in the approach of the case law to the matter of the language in which the suspect’s confession was recorded, despite the clear, explicit directive in the Interrogation of Suspects Law. I am of the opinion that the Interrogation of Suspects Law sought to introduce a substantive change in the normative situation that pertained prior to its enactment. The legislature is deemed not to waste its words, yet the case law has not given full expression to the change that the legislature sought to bring about in relation to the manner of recording the confession of a suspect.

3.         A breach of the provisions of ss. 8(1)-8(2) of the Interrogation of Suspects Law should have real repercussions not only with respect to the weight of a confession, but primarily at the level of admissibility, in view of the ongoing strengthening of the right to a due process at all stages, as expressed in the case-law exclusionary doctrine, and in view of the recognition of due process as a constitutional right.

 

 

JUDGMENT

 

Justice M. Naor

       The appellant was convicted in the District Court (Judge Y. Zelkovnik) of weapons offenses (trading in weapons) and conspiracy to commit a felony, perpetrated in the Gaza Strip. The central question in the appeal before us is whether the offenses attributed to the Appellant, which were committed outside the sovereign territory of the State of Israel, constitute crimes against the security of the State of Israel for the purpose of extraterritorial jurisdiction.

 

Background

The Charges against the Appellant

1.         The Appellant, a resident of the Gaza Strip, was charged with the offense of trading in weapons under sec. 144(b2) of the Penal Law, 1977 (hereinafter: Penal Law), and the offense of conspiracy to commit a felony under sec. 499(a)(1) of the Penal Law.

2.         According to the account in the information, on Jan. 30, 1986, the Government of Israel declared the Popular Front for the Liberation of Palestine (hereinafter: the Popular Front) to be a terrorist organization. The Appellant, at the time relevant to the information, was a resident of Beit Hanoun in the Gaza Strip, served as a police officer in the Palestinian Authority, and was involved in commerce. In 2001, the Appellant conspired with Fana Nasser Kafarna (hereinafter: Kafarna), Abdulrahman Juma (hereinafter: Juma) and others to supply weapons to the Popular Front, which constituted a threat to the security of the State of Israel. The role of the Appellant was to purchase the required weaponry and sell it to the Popular Front, as instructed by Kafarna and Juma, taking advantage of his connections in the Palestinian Authority.  In the years 2001-2002, in order to execute the object of the said conspiracy, the Appellant purchased 65 Kalashnikov rifles, 5,000 rounds of ammunition for the Kalashnikovs, and 80 kilograms of TNT explosives from an arms dealer, as requested by the Popular Front, and sold it for profit to the Popular Front, which caused harm to Israel’s security. Pursuant to these transactions, the Appellant drove Juma and another person to a deserted house in the Gaza Strip in order to test a device containing explosives supplied by the Appellant. In addition, the Appellant supplied the Popular Front with copper sheets for the purpose of producing pellets to be added to the explosive devices, hand grenades, and boxes of “diet sugar” intended for the production of explosives. The Appellant also supplied 100 uniforms. The Appellant stopped supplying arms and services to the Popular Front following a dispute about the prices demanded by the Appellant.

 

The Arrest and Interrogation

3.         In the early hours of July 18, 2006, the Appellant was brought to Israel in the course of operations by the army and Israel Security Agency (hereinafter: ISA)[1]. The ISA began its interrogation of the Appellant on the same day. Additional interrogations took place throughout that month and the month of August. Interrogation of the Appellant was completed on August 13, 2006.

4.         The Appellant was interrogated for the first time, on July 18, 2006, the day he was arrested.  The main points of the interrogation were documented in a memorandum marked P/9. The said memorandum noted that during his interrogation the Appellant provided details about joining the Popular Front in 1988, that he headed a cell, and that he was twice arrested by the Israeli security services for the activities of that cell. Subsequently, after having been involved in taking action against Palestinian collaborators and in military activity of the Popular Front in the Gaza Strip, the Appellant acted like a “fugitive” and remained in hiding until he managed to escape to Egypt, from which he was expelled to Libya. Between the years 1989-1994, the Appellant studied in Cuba, funded by the Popular Front. In 1995, the Appellant returned to the Gaza Strip and began working in the Palestinian Police. According to the said memorandum (P/9), the Appellant also recounted that after his return to the Strip, in the course of 2002, at the request of Nassar Kafarna and a person by the name of Juma, who were members of the Popular Front, the Appellant purchased  Kalashnikov rifles, ammunition for rifles, and T.N.T. explosives from an arms dealer named Nabil Ziddam; he also bought copper sheets and uniforms, and sold them to Kafarna and Juma. In addition, it was noted that the Appellant drove Juma and others to the place in which they ran a trial of an explosive device, and on another occasion he travelled with them to a place where they tried to launch a rocket containing explosive material that he had supplied them earlier. It was also noted in the memorandum that in the course of the interrogation, which began at 8:55 in the morning and terminated at 6:30 in the evening, the Appellant was given many cigarettes and several cups of coffee.

5.         On the day of his arrest – July 18, 2006 – some three hours after the completion of the said ISA interrogation, the police took a statement from the Appellant (P/4) in which he confessed to the acts attributed to him (hereinafter: the statement or P/4). According to what was written in the statement, the Appellant confessed that he had traded with activists in the Popular Front in weapons purchased from a person by the name of Nabil Ziddam, and in uniforms and boxes of “diet sugar”, exploiting his connections with the Palestinian Police. All this was done at the request of Kafarna and Juma. The Appellant also stated that on one occasion he had driven Juma and others to a place where they tried to activate an explosive device. Contrary to what he said in his interrogation by the ISA, in his statement the Appellant said that he was invited to join in the trial launch of the rocket, but refused. Furthermore, the Appellant was documented as saying that he knew that the weapons were intended for the Popular Front, but he did not know to what use they would be put by the organization, and that he traded in them for the purpose of financial gain. He also reported that Juma told him that the uniforms were intended for activists in the Popular Front. The statement P/4 was taken from the Appellant in Arabic and was written down in Hebrew. At the end of the statement, the Appellant was documented as stating: “After [the above statement] was translated for me into the Arabic language, I confirm it with my signature.”

6.         In the ISA interrogations of the Appellant that took place later in the month of July 2006, the Appellant retracted his confession and claimed that he had lied about his involvement in the trading of weapons with activists from the Popular Front. In an ISA interrogation conducted in the course of the month of August 2006, on August 7, 2006 (and documented in memorandum P/14), the Appellant once again admitted that he had traded in weapons with members of the Popular Front – Kafarna and Juma. On the same day, August 7, 2006, another statement was taken from the Appellant by the police (hereinafter: P/5). In this statement, the Appellant stated that he supplied Kafarna, an active member of the Popular Front, with 20 empty hand grenades and three Mirs devices[2]. The Appellant also noted in this statement that he had supplied Kafarna with a Kalashnikov rifle for the purpose of self-defense. In addition, he said that in 1990 he trained in Syria, in the framework of the compulsory training of the Popular Front. In subsequent interrogations of the Appellant, he once again denied that he had traded in weapons with the Popular Front.

7.         On Dec. 7, 2006, the Minister of Defense issued a certificate of privilege concerning, inter alia, the methods of interrogation employed by the ISA. After the certificate was issued, the Appellant was shown “paraphrases” of his interrogation, which related to things he had said in front of “others who were not in positions of authority.” On April 19, 2007, this Court (per Justice A. Grunis) denied a petition submitted by the Appellant to disclose evidence (CrimApp 10537/06).

 

The Offenses attributed to the Appellant are Foreign Offenses

8.         It should be noted at the outset that the offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State of Israel. The issue, therefore, is one of “foreign offenses” (sec. 7(b) of the Penal Law). Since we are dealing with foreign offenses, the written consent of the Attorney General to the prosecution was attached to the information, as required under s. 9(b) of the Penal Law. In principle, domestic criminal law applies to offenses that were committed in the sovereign territory of the state. In our legal system, such offenses are called “domestic offenses” (ss. 7 and 12 of the Penal Law; and see LCrimA 1178/97 Kahana v. State of Israel [1], at p. 269). There are exceptions to this rule, and a legal system may extend the application of its laws to criminal offenses committed beyond its territorial borders. In Israeli criminal law, such offenses are called “foreign offenses”.

       A foreign offense, according to its definition, is any offense that is not a domestic offense (sec. 7 of the Penal Law). A domestic offense is, as stated, an offense that is committed entirely or partially within the State, or the outcome of which is intended to eventuate in the State (sec. 7(1) of the Penal Law). In other words, a foreign offense is any criminal offense which was committed entirely beyond the territory of Israel, such as in our case. As a rule, the area of application of Israeli criminal law is within the territory of the State. When we seek to apply this law to foreign offenses, we must be able to point to a “connecting link”, a “normative bridge”, between the law of the state and these offenses that were committed beyond the borders of the state, which will replace the territorial element (see CrimA 7230/96 A. v. State of Israel  [2], at pp.  522-523; CrimFH 2980/04 Oiku v. State of Israel [3], at pp. 38-39; CrimA 4596/05 Rosenstein v. State of Israel [4], at pp. 383-385). Several jurisdiction-extending nexuses are accepted in most legal systems, including the Israeli legal system: an active personal nexus – between the perpetrator of the offense and the legal system; a passive personal nexus – between the victim of the offense and the legal system; a universal nexus – which relates to particularly serious offenses whose prevention is a matter of universal interest; a vicarious nexus  – which relates to offenses that Israel will address by virtue of a treaty between itself and another state; and the protective nexus – which concerns acts that have harmed or were intended to harm essential state interests, such as security, the regime or the economy. These interests are specified in s. 13 of the Penal Law (for an elaboration of the various nexuses, see: S.Z. Feller, Foundations of Criminal Law, vol. 1, 240-30 (1974) (Hebrew) (hereinafter: Feller)).

9.         In the trial court, the Respondent argued that Israeli law applies extraterritorially to the offenses attributed to the Appellant by virtue of the protective nexus. These offenses, it was argued, were committed against the security of the state (see s. 13(a)(1) of the Penal Law which states: “Israel’s penal laws will apply to foreign offenses against national security, its foreign relations or its secrets”). The Appellant, on his part, argued that he perpetrated the acts attributed to him for purely economic motives, with no intention of harming national security. Therefore, he argued, for the purpose of extraterritorial application, no offenses against the security of the state are involved. In addition, the Appellant claimed that the Court did not acquire jurisdiction to try the offense of conspiracy attributed to him. The offense of conspiracy to commit a felony appears in s. 499(a)(1) of the Penal Law, which provides:

          499. (a) If a person conspires with another to commit a felony or misdemeanor, or to commit an act in a place abroad which would be a felony or misdemeanor if it had been committed in Israel – and which also is an offense under the laws of that place, then he is liable –

(1) if the offense is a felony, to seven years imprisonment or to the punishment prescribed for that offense, whichever is the lighter punishment; [emphasis added – M.N.]

The Appellant claimed that because he was accused of conspiring to commit an act abroad, the matter falls within the scope of the latter part of s. 499(a)(1) of the Penal Law. Therefore, in order for the offense of conspiracy to arise, the substantive offense attributed to the Appellant, i.e. dealing in weapons, must also constitute an offense under the laws of “that place” – i.e. under the laws of the Gaza Strip. This, he argues, was not proved. On the substance of the charge, the Appellant argued that his confession from the first day of his arrest (P/4) is inadmissible due to the use of improper interrogation methods, and at the very least, the circumstances under which the confession was made reduce its weight considerably.

 

The Judgment of the District Court

10.       Regarding the question of the application of the law, the District Court ruled that the circumstances of the Appellant’s acts – the large-scale sale of weapons to a terrorist organization – were sufficient to justify the application of the penal laws of Israel to the acts, and it was not necessary to decide on the question of whether intention to harm security was also required. In any case, it was determined that the existing factual foundation showed that the Appellant was aware that the weapons that he sold would be used to harm the security of the State of Israel – such knowledge being equivalent to intention to harm the state. As for the offense of conspiracy, the District Court ruled that the Appellant was being tried in the framework of the first part of the section, which treats of the offense of conspiracy as a foreign offense against national security. In such a case, extraterritorial application of the law is permissible, just as domestic law may be applied to the offense of dealing in weapons.

On the merits, the District Court dismissed the Appellant’s arguments concerning the admissibility and the weight of his confession to the acts attributed to him in the information. The District Court examined the Appellant’s arguments that improper interrogation methods were employed against him, and that his confession was not given freely and voluntarily, and found them to be without substance. The District Court pointed to a contradiction in the Appellant’s arguments that detracted from his claim that the confession was coerced: on the one hand, the Appellant said that he confessed after improper interrogation methods were employed; on the other hand, he argued that despite the pressures of the interrogation, he did not make any confession, and that he signed the statement P/4 due to the pressure applied to him, without knowing that according to its contents, it was a confession.

       In regard to the circumstances in which the confession was obtained, the District Court ruled that only the means of interrogation employed up to the time the Appellant made statement P/4 – which, as noted, was made already on the first day of his arrest – were relevant. It also found that the immediate commencement of the interrogation, as well as its duration, negate, or at least detract from, the Appellants’ arguments with respect to the methods of interrogation used until he made statement P/4, such as his argument that he was put in solitary confinement in the freezing cold. In addition, the Court found that the testimony of the interrogators that the Appellant was not starved, threatened or put in solitary confinement was reliable. It was also determined that the ISA records correctly described what happened in the interrogation room. The court added that the interrogation of the Appellant was indeed very lengthy and even exhausting, but this was necessary for the purposes of the interrogation, and was not intended as a means of “squeezing” a confession out of the Appellant. Therefore, it was held that in the course of the ISA interrogation prior to delivery of statement P/4, the Appellant was not subjected to improper means of interrogation. A similar determination was made with respect to obtaining the confession at the police station. The court accepted as reliable the testimony of Onsey Harladin, a police investigator who took down statement P/4, that the Appellant made the statement voluntarily. It was also found that the transcription of the statement does not constitute a copy of memorandum P/9, and even though statement P/4 is generally consistent with what was recorded in P/9, there are differences between the two documents that attest to the fact that it is not a “clone”.

11.                   As for the weight of the confession P/4, the District Court determined that even though the transcription of a suspect’s statement in the language in which it was uttered is of utmost importance, in the circumstances of this case the transcription of P/4 in the Hebrew language did not detract from its weight. Officer Harladin speaks Arabic fluently, and he testified that he translated everything that the Appellant said. Moreover, the Appellant did not relate to the contents of the statement and did not indicate actual places in which, according to him, the meaning of his words had been distorted due to the method of transcription. The court further determined that statement P/5 simply added details about trade in additional weapons, without negating or contradicting what was said in P/4. Thus, there is nothing in P/5 to detract from the weight of statement P/4. Additional support for the confession was found in the Appellant’s testimony in court, in the framework of which he confirmed that he had transferred grenades and communications devices to Kafarna, an activist in the Popular Front. This testimony confirms the existence of a connection between the Appellant and the activists in the Popular Front with respect to the transfer of weaponry. Yet further support was to be found in the statement made to the police by another active member of the Popular Front – Shafik el-Barim (P/7). In his statement, Shafik confirmed that Juma is a senior activist in the Popular Front, who is involved in the military activity of the organization, including the launching of rockets. He also gave information about the connections of Kafarna, who is Juma’s superior. In his testimony, Shafik denied that he had said these things to the police, but the court accepted the position of the prosecution that Shafik’s statement prior to his testifying in court should be accepted, under s. 10A of the Evidence Ordinance [New Version], 5731-1971. The court found additional probative support in the statement of Emad Hassin (P/1), who supplied details about the arms dealer Nabil Ziddam that were identical to those provided by the Appellant.

12.                   The District Court therefore ruled that the Appellant’s statement P/4 should be assigned substantial weight, and that the Appellant did indeed engage in the trade of weapons with activists from the Popular Front. Furthermore, the court held that the Appellant’s argument that he acted from economic motives was not to be dismissed. However, in view of the circumstances as described, it found that the Appellant was aware of the fact that the weapons he supplied to the Popular Front were intended to harm Israel’s security – and it seems that the profit motive bolstered the Appellant’s support for the Popular Front that arose from his family and personal connections with the organization. The Court therefore convicted the Appellant of the offenses attributed to him in the information.

13.                   The court sentenced the Appellant to 12 years imprisonment, from which the period of his detention would be deducted. It also imposed an additional two-year conditional sentence, for a period of three years after completion of the prison term. The court remarked in its sentencing decision that the Appellant’s deeds were particularly grave in view of the sheer volume of weapons that were sold, and in view of the terrorist nature and character of the organization to which they were sold. This gravity was exacerbated by the Appellant’s knowledge that the arms were intended to harm the State of Israel or its citizens. The fact that it was not proved that these weapons were actually used for the purpose of terrorist attacks within the territory of the State of Israel or for other hostile purposes is of no consequence. The court pointed to similar cases of arms smuggling and dealing in which heavy sentences were imposed upon the accused. In mitigation, the court took into consideration the fact that the Appellant had been dealing in arms for a relatively short period (only during the years 2001-2002 ). However, the fact that the Appellant had not expressed remorse for his actions added to the severity. The court therefore sentenced the Appellant to the said punishments.

       Hence the appeal before us, which challenges both the conviction and the severity of the sentence.

 

The Arguments of the Appellant

14.       The Appellant once again argued that Israeli law does not apply to his case, and that the information does not disclose an offense. In addition, the Appellant repeated his claim that his confession P/4 was not given freely and voluntarily, since it was obtained following the application of unlawful pressure by the ISA interrogators. The Appellant based this argument, inter alia, on a paraphrase of his statement to “another” that he was shocked by his arrest and therefore confessed. The Appellant also argued that he was not aware of the contents of  statement P/4 that he signed, and that he signed only following pressure from the interrogators. He also said that he signed the statement on the understanding that this would bring about his release. The Appellant further claimed that the District Court was mistaken in regarding as credible the testimony of the interrogators, according to whom improper means of interrogation had not been used on him, and he claimed that the findings of the District Court attest to the fact that improper means were indeed employed.

       In addition, the Appellant claimed that the transcription of his confession in the Hebrew language detracts from its weight, and its reliability is compromised in view of his contradictory statement documented in P/5, the contents of which he says he did not deny. Therefore, the transcription of P/4 in a language other than the original, and the contradiction between P/4 and the lawfully-obtained P/5, constitute cause for preferring the latter. It was also contended that weight should not be attributed to statement P/4 since the required time had not lapsed between the police interrogation – at the end of which the Appellant signed P/4 – and the ISA interrogation that preceded it. The police interrogation was conducted only three hours after the completion of the ISA interrogation, and this was not sufficient to create the necessary separation to allow the Appellant understand that these were two different interrogations. Similarly, according to the Appellant, he was not properly cautioned against self-incrimination, and it was not explained to him that there is a difference between the police interrogation and its ramifications on the one hand, and the ISA interrogation on the other.

       Finally, the Appellant argued that it had not been proven that he had mens rea. He claimed that the offense of conspiracy requires proof of intention that the offense to which the conspiracy relates will be perpetrated, and intention that national security will be harmed as a result. In view of the fact that he acted from purely economic motives, the prosecution did not raise this burden of proof.  The Appellant therefore argued that his conviction could not stand.

15.                   Regarding the sentence, the Appellant argued that the Court did not assign sufficient weight to mitigating considerations, and imposed a prison sentence that was too severe. The Appellant reiterated that the offenses attributed to him were committed over a short period of time, motivated by economic hardship and the need to support his family, with no ideological motivation whatsoever. He also claimed that his health had deteriorated from the beginning of his detention, which was characterized by harsh conditions and loneliness. The Appellant further argued that his sentence was more severe than sentences that had been imposed in similar cases, constituting a deviation from the principle of uniformity in sentencing. He therefore appealed to this Court to reduce his sentence.

 

Arguments of the Respondent

16.       With respect to the application of Israeli law to the offenses ascribed to the Appellant, the Respondent relied on the judgment of the District Court. Regarding the admissibility of the confession, the Respondent claimed that the Appellant’s arguments were directed against factual findings and credibility, with which the appeal instance does not rush to interfere. Thus, it would be unwarranted to intervene in the findings of the District Court that the Appellant’s confession  was given on the first day of his detention, after he had rested in his cell; that the testimonies of the ISA interrogators regarding the conditions of the interrogation were credible, and that the paraphrases of the confidential material did not lend any real support to the Appellant’s claims about the use of improper interrogation methods. Moreover, this Court (per Justice A. Grunis) denied the Appellant’s petition for disclosure of evidence, and ruled that the confidential material does not contain material that is essential to the Appellant’s defense. The  Respondent further argued that the Appellant’s line of defense is not consistent. While on the one hand he argues that his confession was obtained as a result of improper means of interrogation, on the other hand he claims that statement P/4, in which he confessed to the charges in the information, did not record what he said.

17.       As for the weight of the confession, the Respondent argued that this Court should not intervene in the factual findings of the District Court in regard to the separation of the police interrogation from that of the ISA. Regarding the transcription of the Appellant’s confession in a language other than the original, the Respondent agreed that, as a rule, the confession of an accused should be written down in the language in which it was uttered. However, this does not affect the weight of the statement. According to the Respondent, the District Court correctly considered the totality of the circumstances surrounding the documenting of the statement, including the fact that the statement was translated for the Appellant, and the court correctly ruled that it was reliable. Regarding the mental element of the crime, it was argued that it had been proved that the Appellant was aware that the weapons were being transferred to the Popular Front, and that they were intended to serve the purposes of the organization against Israel. True, the Appellant acted for financial gain, but his level of knowledge about the fact that the organization is hostile to Israel and acts to harm Israel is equivalent to intention to achieve the outcome.

Regarding the punishment, the Respondent argued that the Appellant’s sentence is consistent with the gravity of his actions, and with the appropriate level of punishment for these sorts of crimes. The Respondent added that the Appellant’s acts did not constitute a one-time error, and they were not committed against the background of any particular hardship. It was also argued that the Appellant did not express remorse for his actions, nor did he take responsibility for them. The Respondent therefore requested that we allow the punishment to stand.

 

Discussion and Decision

18.       The deeds attributed to the Appellant in the information were perpetrated, as stated, beyond the sovereign territory of the State of Israel. The Respondent agrees that these are foreign offenses. Its position is that these offenses have extraterritorial application by virtue of the protective nexus, since they are crimes against national security. We will first address the question of the extraterritorial application of the offenses of which the Appellant was convicted. Thereafter, the Appellant’s other arguments regarding the admissibility of his confession and its weight, and his arguments as to the sentence, will be considered.

 

Extraterritorial Application and the Protected Interest – The Law Prior to and Subsequent to Amendment 39

19.       The relevant statutory provisions concerning extraterritorial application were changed by the Penal Law (Amendment 39) (Introductory Part and General Part), 5754-1994, (hereinafter: Amendment 39; see also A. v. State of Israel [2], at pp. 519-520). The present case is governed by the statutory provisions as currently formulated, subsequent to Amendment 39.

20.       As noted, the starting point is that the penal laws of a state apply within its sovereign territory. There are, as we have said, exceptions. When a foreign offense is directed against an essential interest of the state, domestic law may be applied to it by virtue of the protective nexus.  The protective nexus is accepted in most legal systems, and it constitutes a “normative bridge” between the law of the state and the deed perpetrated beyond the borders of the state, replacing the territorial basis. The justification for this nexus can be found in the right of a sovereign state to protect, on its own, those interests that are vital to its existence, such as the interest of security.

Prior to Amendment 39 of the Penal Law, the provision relevant to our case was to be found in s. 5 of the Penal Law 5737-1977, which stated as follows:

            5.                     The courts in Israel are authorized to try according to the laws of Israel a person who committed abroad an act which would constitute an offense if committed in Israel, and the act was harmful or was intended to harm the State of Israel, its security, its property, its economy or its foreign relations, its transportation links or its communication links with other states (emphasis added -  M.N.).

Moreover, s. 5(b) of the Penal Law prior to Amendment 39 contained a list of specific offenses that had extraterritorial applicability due to the protective nexus. The interpretation of s. 5(a) of the Penal Law was discussed in the case of A. v. State of Israel [2]. That case concerned an accused who attempted to smuggle drugs from Venezuela to Canada by means of a bag on which he stuck a forged label so that it appeared to be an Israeli diplomatic pouch. The judgment of this Court dealt, inter alia, with the question of whether the penal laws of Israel could be applied to such acts, which fell within the category of foreign offenses. The Court decided, relying on the language of s. 5(a) of the Penal Law (prior to Amendment 39), that for the purpose of extraterritorial application by virtue of the protective nexus, it was sufficient that there was an act committed under circumstances that demonstrated intention to harm the state or which caused it actual harm. It also decided that the protective nexus was not confined to specific statutory provisions whose subject and purpose are the protection of vital national interests (A. v. State of Israel [2], at pp. 525-526).

Today, subsequent to Amendment 39, the provisions relevant to the protective nexus are to be found in s. 13(a) of the Penal Law, which provides:

13 (a) Israel penal laws shall apply to foreign offenses against –

(1) national security, the State’s foreign relations or its secrets;

(2) the form of government in the State;

(3) the orderly functioning of State authorities;

(4) State property, its economy and its transportation and communication links with other countries;

(5) the property, rights or orderly functioning of an organization or body enumerated in subsection (c).

…

(c) “Organization or body”, for the purposes of subsec. (a)(5) – …

 

Amendment 39 extended the scope of the protective nexus to the protection of Jews and Israelis from harm directed at them because of their identity. This is anchored in s. 13(b) of the Penal Law:

13 (b) Israel penal laws shall also apply to foreign offenses against –

(1) the life, body, health, freedom or property of an Israel citizen, an Israel resident or a public servant, in his capacity as such;

(2) the life, body, health, freedom or property of a Jew, as a Jew, or the property of a Jewish institution, because it is such.

21.                   Thus, the wording of the Law subsequent to Amendment 39 is not identical to its wording prior to the Amendment. The pre-Amendment wording indicated that extraterritorial application of the law is possible both in the case of an “act” that harmed the state (or was intended to harm it) and to specific offenses from a closed list. The present text no longer relates to specific offenses, and the Law no longer refers to an “act” that harmed or was intended to harm the state or various interests; rather, it refers to foreign offenses “against” certain specified interests, including national security.  Does the word “against” refer only to offenses that by their nature are directed against the essential interests of the state, and which are specified in s. 13 of the Penal Law, or does it also include acts, constituting offenses, that according to their circumstances, were directed against those same interests, for example, if they were committed with the intention of harming those interests.

This question is important in our context. As will be recalled, the Appellant was accused of the offense of trading in weapons, under s. 144(b2) of the Penal Law, which states:

(b2) If a person produces, imports, exports, trades or performs any other transaction with weapons, which includes giving a weapon into the possession of another – whether or not for consideration – without having lawful permission to perform the said act, he shall be liable to fifteen years imprisonment.

            The offense of trading in weapons is not necessarily related to protection of national security. In some circumstances, the act of trading in weapons may have the effect of harming national security or of indicating an intention to harm it. However, the purpose of the offense – or if you prefer, the interest it protects – is not the protection of national security. In presenting their oral arguments, we allowed the parties to elaborate on their written pleadings on the question of the protective application to the present case.

22.                   In its supplementary pleadings, the Respondent focused on the interest of national security. It argued that any act – performed with an intention to harm national security – sufficed to justify extraterritorial application. The Respondent insisted that the purpose of the protective nexus supported this interpretation. The Respondent also supported its arguments with the fact that charges are often filed in Israeli courts against persons accused of foreign offenses, which according to the circumstances of their commission, were directed against national security. The Appellant, on the other hand, argued that in order for the penal laws of Israel to apply to a foreign offense, the offense must be directed, by its very nature, against national security. Counsel for the Appellant agrees that this does not refer only to those offenses included in the relevant chapter of the Penal Law, titled Offenses Against “National Security, Foreign Relations and Official Secrets” (Chap. 7 of the Penal Law). According to him, it also refers to any offense that, in accordance with its defining elements, is directed against national security, such as an offense under the Prevention of Terrorism Ordinance. However, the offenses of which the Appellant was accused are not such offenses, and his counsel therefore argues that the Israeli courts did not have jurisdiction over the Appellant.

 

The Scope of the Protective Nexus subsequent to Amendment 39

23.                   This Court has noted in the past that “the protective conception – which is what concerns us – may be given limited or wide statutory expression … but it will always be the law that decides” (A. v. State of Israel [2], at p. 525). The legislature’s ability to choose between wide or narrow protective application is consistent with the domestic law approach whereby the legislature is entitled to set the bounds of the law at its discretion, without taking into account constraints of foreign or international law (s. 9(a) of the Penal Law; and see the Rosenstein case [4], at p. 381; Gabriel Hallevy, Theory of Criminal Law, vol. 1 (2009), 446 (Hebrew). The relevant statutory provision in our context is sec. 13(a), and particularly sec 13(a)(1) of the Penal Law, which we will now examine.

Was it the intention of the legislature, in Amendment 39, to create a change in the situation that pertained prior to the Amendment? After having given this serious consideration, I propose to my colleagues that this question be answered in the negative. The starting point for the discussion is the language of s. 13(a)(1) of the Penal Law in its post-Amendment formulation: “Israel’s penal laws shall apply to foreign offenses against – (1) national security, the State’s foreign relations or its secrets.”  “Foreign offense” is defined negatively: it refers to any offense that is not a domestic offense. In principle, any criminal offense may fit the definition of “foreign offense”. There is nothing in the first part of s. 13(a) that defines the scope of the protective nexus. The question is whether the word “against” must be interpreted as referring only to offenses which by their nature are directed against national security, such as offenses specified in the relevant chapters of the Penal Law and the Prevention of Terrorism Ordinance. In my opinion, the interpretation according to which the protective nexus remains applicable to all acts which by virtue of their circumstances are directed against national security is to be preferred.

The basis for this determination, as will be explained, is the interpretation of s. 13(a) in accordance with its purpose. Section 34U of the Penal Law states:

34U. If an enactment can be reasonably interpreted in several ways in respect of its purpose, then the matter shall be decided according to the interpretation that is most favorable for whoever is to bear criminal liability under that enactment.

Interpretation of the law in the criminal sphere is also purposive interpretation, in the framework of which one must examine the language of the law, as well as the goals and interests that the law is intended to realize (CFH 1558/03 State of Israel v. Assad [5], 557). An interpretation of the language of the law that is favorable to the accused may nevertheless be rejected if it fails to optimally realize the purpose of the law. This Court considered this point recently in CrimA 8831/08 State of Israel v. Alshahra [6]:

Among several possibilities that realize the statutory purpose, the one to be chosen is that which realizes it in the fullest way, in both its subjective and objective purpose (Aharon Barak Purposive Interpretation in Law (2003) (Hebrew) 133-135 (hereinafter: Barak, Purposive Interpretation). Only where there remain several possible interpretations of the norm according to its statutory purpose, is the interpretation most favorable to the accused is to be preferred (CrimA 8831/08 State of Israel v. Alshahra [6], per Justice Y. Amit at para. 20).

Thus, the interpretation that most fully realizes the statutory purpose underlying s. 13 of the Penal Law is to be selected. Only in the event that the two possible interpretations comply with this requirement does s. 34U direct us to select that which is most favorable to the Appellant (see also: Aharon Barak, On the Interpretation of a Penal Provision, (2002) 17 Mehkerei Mishpat, 347 (Hebrew)).

24.       The statutory provisions regarding extraterritorial application by virtue of the protective nexus, as formulated prior to Amendment 39, applied the domestic law to every act that harmed or was intended to harm “the State” or important interests such as the economy of Israel and its security. The present formulation restricts the application of the law by virtue of the protective nexus to offenses that are directed against certain interests, and it no longer allows for the application of the law to “any” harm to the “state”. At the same time, I propose to my colleagues we should hold that despite the textual change, Amendment 39 did not reduce the scope of the protective nexus. Israel’s criminal laws continue to apply to a person who perpetrates an act which, according to its circumstances, harmed or was intended to harm the security of the state, as was the situation that pertained prior to the Amendment.

From the Explanatory Notes to Amendment 39 it emerges that the scope of protection of those vital interests was not reduced. The Explanatory Notes are “silent” on the change of wording in relation to the protective nexus – a change which we discussed above. In my view, this “silence” is significant. It indicates a lack of intention to create a “revolution”, other than a change in wording. Furthermore: the general attitude of the Explanatory Notes to the scope of the protective nexus manifests a desire to expand this scope from a substantive point of view in certain areas, and there is no mention of any intention to restrict it. Thus, regarding the proposed statutory change in the extraterritorial applicability, the Explanatory Notes to Amendment 39 noted that:

The main changes in the bill are a clear-cut separation between the different types of application, and particularly, eradication of any aspects of protective application from universal application and personal-passive application; expansion from a substantive perspective of the protective application and of the personal-active application” (S.Z. Feller and M. Kremnitzer, Criminal Code Bill – Preliminary and General Parts (Text and Brief Commentary), 14 Mishpatim (1984) 128, 201-202 (Hebrew) (hereinafter: Feller and Kremnitzer) (emphasis added – M.N.).

The Explanatory Notes also mentioned that the rationale behind nullifying the particular offenses specified in s. 5(b) was the desire to avoid a closed list of offenses that have extraterritorial applicability due to the protective nexus, as it may suffer from omissions:

In order to avoid casuistic specification which is liable to be incomplete, such as that found in s. 5(b) of the Penal Law [prior to Amendment 39], what is proposed is the general formulation of an offense of likely harm to the proper operation of the state authorities (s. 13(a)(3)) (ibid., at p. 202) (emphasis added – M.N.).

Another major change in the new Law was, as stated, the expansion of the protective nexus to foreign offenses against Israelis or Jews, wherever they may be (this expansion has been  criticized: Yoram Shachar, In Condemnation of the National Application of Criminal Law,  5(1) Plilim (1996) (Hebrew); for a different view, see: S.Z. Feller and Mordechai Kremnitzer, Reply to the Article ‘In Condemnation of the National Application of Criminal Law ’ by Y. Shachar, 5 Plilim (1996), pp. 65, 73 (Hebrew) (hereinafter: Feller and Kremnitzer – Reply)).

The intention was, therefore, to expand and not to constrict the protective nexus from a substantive point of view, vis-à-vis the situation prior to the Amendment. Thus, as we have said, the list of specific offenses to which Israeli criminal law applied by virtue of the protective nexus was revoked, and the protective nexus was expanded to apply also to foreign offenses against Jews and Israelis. The position whereby the new legislative provisions expand the protective nexus finds expression in the literature as well (see Y. Kedmi, On Criminal Law, vol. 1 (2004), at p. 30 (Hebrew): “The new provision [s. 13 of the Penal Law] adopts a general formulation and avoids going into details that are liable to be found incomplete. The former provisions of the Penal Law – particularly the provisions of what was then s. 5 – should not be viewed as defining the borders”).

25.                   Moreover, s.13(a)(3) of the Penal Law deals, as stated, with foreign offenses against the “proper operation of state authorities”. As will be recalled, the Explanatory Notes to Amendment 39 mentioned that this general section was added to the protective nexus in order to break out of the bounds of the list of specific offenses that were once anchored in s. 5(b) of the Penal Law. Furthermore, the general nature of this interest, to which no specific chapter had been devoted in the Penal Law (such as chap. 7 dealing with security offenses) attests to the fact that the intention of the legislature was not to restrict it only to concrete offenses. In addition, s.13(a)(5) of the Penal Law treats of foreign offenses against rights, property or the orderly functioning of certain national institutions. Here, too, it is difficult to pinpoint offenses that are intrinsically directed against the proper functioning of those specific institutions. In other words, other interests that are anchored in s.13(a) are not confined to offenses that are intrinsically directed against them. In the same way, it cannot be said that foreign offenses against security are only those statutory provisions whose purpose is the protection of this interest.

26.                   The purpose of the protective nexus, particularly in the context of national security, lends support to the conclusion that the protective nexus is not confined to offenses that are intrinsically harmful to national security. The purpose of this nexus is, as stated, a response to the need of the state to protect itself from deeds that are perpetrated outside its borders and that are directed against vital interests that go to the very root of the existence of the state (see: A. v. State of Israel [2], at 521, and see Ian Brownlie, Principles of Public International Law,(7^th ed., 2008) 304-305). Regarding the purpose of the protective nexus, the Explanatory Notes to Amendment 39 note:

Section 13 treats of protective application that is based on a special nexus of the type of offense to the State, when the offense is likely to endanger the political, security and economic foundations      of the state, its standing and the orderly functioning of its institutions (Feller and Kremnitzer, at p. 202).

27.       The question of the scope of the protective nexus subsequent to the legislative change introduced by Amendment 39 was considered by this Court in the Alshahra case [6]. There, at issue was the interpretation of s. 13(a)(4) of the Penal Code, which states:             “Israel’s penal laws shall apply to foreign offenses against State property, its economy and its transportation and communication links with other countries.” In the above case, two residents of the Territories were accused of dismantling stolen cars, forgery and dealing in stolen vehicles. The offenses attributed to them were all committed in Area A, under the control of the Palestinian Authority, and they were therefore considered foreign offenses. This Court considered the question of whether these offenses fall within the bounds of s.13(a)(4) of the said Penal Law, and held that Israeli law does not apply to the foreign offenses attributed to the accused. It was held there that it is not sufficient that the offense causes harm to the property of individuals in order for the protective nexus to arise. Even the fact that car theft constitutes a “national plague” is not enough to expand the application of the law. It was further held that the offense must be one that is directed against a protected value related to the economic infrastructure of the state. As an example, the Court cited the offenses of forgery of currency, or harm to goods that constitute part of an important export branch.

The Appellant in our case argued that the said rulings indicate that Israeli law applies only to those foreign offenses that are intrinsically directed against the state, and that an analogy should be drawn from that interpretation to our case. However, the Alshahra case [6] also noted that the accumulation of offenses of car theft and dealing in stolen parts perpetrated by an individual entity can result in an argument that offenses against the national economy are at stake (para. 29). From this it transpires that the Court did not interpret the section as applying only to offenses intrinsically harmful to the national economy. The Court was prepared to apply the protective nexus to offenses of theft and trade in stolen parts, which are not intrinsically directed against the interest of the national economy, if, under the circumstances, the accumulation of car thefts and trade in stolen car parts by the individual indicate harm to the national economy.

28.                   We would note that the trial courts have held that the provisions of s.13(a) of the Penal Law are not confined to certain statutory provisions, and that protective application extends to a range of matters that may harm protected national values (see the decision of the Beer Sheba District Court – CrimC (Beer Sheba) 8179/07 State of Israel v El Najar [31]: in the main proceedings, the accused confessed to the alleged offenses, and filed an appeal to this Court, but the appeal turned only on the severity of the sentence – CrimA 9428/08 El Najar v. State of Israel [7]; and see: MApp 3403/08 (Beer Sheba Magistrates Court) State of Israel v. Harzallah [32]).

29.              The function of the protective principle is to protect important interests from various threats. Clearly, there are some deeds which, by virtue of their circumstances, present a real threat to the security of the State of Israel, even if they do not constitute “pure” security offenses like s. 111 of the Penal Law that prohibits the delivery of information to the enemy. Thus, for example, a person’s acts that constitute a link in the terrorism chain, whether they be the funding of the activities of a terrorist organization or the smuggling of weapons to that organization, constitute a concrete threat to security. In the past, people were tried in Israel for foreign offenses where the circumstances of their commission indicated a threat to security, such as weapons offenses (for digging tunnels in the Gaza Strip that were intended for the smuggling of weapons from Egypt to the Strip), offenses of prohibited military exercises or the funding of the activity of terrorist organizations (see e.g.: CrimA 3827/06 A. v. State of Israel [8]; CrimA 6328/09 El Najar v. State of Israel [9] (hereinafter: the El Najar case); CrimApp 1600/06 A. v. State of Israel [10]; CrimA 6491/08 Bradville v. State of Israel [11]). Admittedly, the protective principle is limited to the offenses that endanger one of the interests specified in s.13(a) of the Penal Law (see Feller, at p. 275). However, this does not mean that the scope of the principle is limited only to specific statutes. Within the bounds of the protective nexus it is possible to include acts that, of course, constitute offenses that by their circumstances constitute a threat to a particular vital interest that the law seeks to protect, no matter where the act was committed.

30.                   The protective principle is especially important in modern times, in which the commission of crimes unbounded by territorial constraints is easier and more possible than ever, and there is a real need for prevention. Moreover, today, the interest in bringing the offenders to justice, and the interest in preventing them from using states as havens, are interests common to all states, and therefore, there is a discernable trend to extend the scope of application of domestic law to acts perpetrated beyond the state borders (Feller and Kremnitzer – Reply, at p. 73). This is certainly so in the case of terrorist activity. The State of Israel is often threatened by terrorist elements, and stands at the forefront of the struggle against terror. This struggle demands confronting every link in the chain of terrorist acts, whether within the borders of the State of Israel or beyond them. This Court has addressed this in the context of the smuggling of weapons that are liable to end up in the hands of terrorist elements, noting that –

No great expertise is required to understand that the uninterrupted supply of weapons and ammunition contributes to the persistence of the wave of violence and terror. The channels for smuggling ammunition and weapons constitute an artery that feeds the terrorist activity and they are, therefore, an integral part of it. It is patently obvious that the gravity, the risk and the abhorrence associated with acts of terror themselves also impact on the punishment of those who are involved in the early – but vital – stages of the chain of terror (CrimA 4043/05 State of Israel v. Bniat [12], per Justice A. Grunis, at para. 8; see also CrimA 2985/10 Hamed v. State of Israel [13], my opinion, at para. 10).

The protective principle, when it is not restricted to a closed, specific list of offenses, allows for effective, focused action against those links in the chain of terror whose operational base is often to be found outside the territory of the State of Israel. The purpose of the Law, therefore, is best realized when the scope of the protective application is not confined to a list of specific offences that are intrinsically directed against national security.

31.              What emerges from the above is that the protective nexus is confined to the protection of certain fundamental national interests, but not exclusively to offenses that are intrinsically prejudicial to those interests. Extraterritorial jurisdiction may also apply to acts – constituting offenses – whose circumstances indicate that they present a serious risk to these interests, or that there is an intention to harm them (for a position in the academic literature supporting the application of Israeli law to acts that were perpetrated with the intention of harming national security see: Yoram Dinstein, The Amendment to the Foreign Offenses Law, 2 Iyunei Mishpat (1973), 829, 836 (Hebrew)) . This, in my opinion, is the interpretation that best realizes the purpose of the legislation subsequent to Amendment 39, as well. A different interpretation, such as that proposed by the Appellant, does not permit effective confrontation of the chain of terrorist links, the operation of which presents a great danger to national security. As such, it does not constitute a reasonable interpretation, and does not fulfill the purpose of the legislation.

32.                   Concern about the “imperialist” application of Israeli penal law, as claimed by the Appellant, is unwarranted. The fact that the state is authorized to apply its laws to foreign offenses does not mean that the authorities of that state are permitted to operate in the territory of a foreign sovereign in order to enforce those laws (see Feller and Kremnitzer – Response, at p. 67; and see: Monika B. Krizek, The Protective Principle of Extraterritorial Jurisdiction: A Brief History and an Application of the Principle to Espionage as an Illustration of Current United States Practice, 6 B.U. Int’l L.J. (1988), 337, 357). Moreover, prosecution for foreign offenses is subject to special oversight. A person may not be tried for a foreign offense other than by the Attorney General or with his written approval (s. 9(b) of the Penal Law). This supervision allays the concern about the application of domestic law to cases that do not justify such action.

 

Comparative Law

33.                   Extraterritorial application by virtue of the protective nexus is accepted, as stated above, in most legal systems. As a matter of principle, international law does not restrict the scope of the protective nexus, and each state may define its limits (S.S. Lotus (France v. Turkey) [33]; S.Z. Feller, Criminal Jurisdiction: Borders and Restrictions, 2 Iyunei Mishpat (1973), 582 (Hebrew)). At the same time, one must be careful not to abuse this nexus when it oversteps its purpose, i.e. the protection of basic, fundamental interests (Malcolm N Shaw, International Law (6^th ed., 2008) 666-667). The interest of security is, in any case, recognized as an interest worthy of protection.

The modes of implementation of the protective nexus in different legal systems are varied. Thus, there are legal systems in which the protective nexus is confined to a list of specific statutes (§5 stGB (Germany)); some legal systems apply domestic law to some offenses that are specific but formulated broadly (the French penal law applies the protective principle, for example, to the offense of destruction of a document, equipment, a structure, etc., where this poses a threat to the essential interests of the state, including national security (Code Penal [C.Pen.] art L. 411-9 (Fr.)). There are also systems of law that choose to apply domestic law to acts at a certain level of severity committed beyond their borders, when these acts harm important interests (Estonian Criminal Code §9).

In the United States, the protective principle, as justifying extraterritorial application, is recognized in the framework of Restatement (Third) of the Foreign Relations Law of the United States §402(1)(1987), which states that domestic law may have extraterritorial application to particular conduct by foreigners, outside the territory, that is directed against national security or against certain other national interests. This is subject to the application of the law being reasonable (§403), and provided that it is possible to identify an express or implied intention of the legislature to the effect that the particular statute should apply extraterritorially, on condition that this is consistent with the right to due process (United States v. Yousef [34]; United States v. Bowman [35]). Extension of the application of the law should ideally comport with international law, but this is not essential (United Sates v. Pinto-Mejia, 720 F.2d 248, 259 (2^nd Cir. 1983) [36]; the Rosenstein case [4], at p. 382). In various decisions in the United States, extraterritorial application of the law was justified by virtue of the protective nexus, primarily in regard to drug-related offenses or offenses against representatives of the authorities dealing with narcotics, and various offenses directed against governmental authorities (United States v. Chua Han Mow [37]; United States v. Schmucker-Bula [38]; United States v. Felix-Gutierrez [39]).

Recently, application of the law has been extended to offenses that constitute support for terror or terrorist organizations, even if they were committed by foreigners beyond the borders of the state. This extension was justified, inter alia, on the basis of the protective principle and on the basis of the right of the state to protect itself against acts that endanger its security (see United States v. Yousef [33]; Alexander J. Urbelis, Rethinking Extraterritorial Prosecution in the War on Terror: Examining the Unintentional yet Foreseeable Consequences of Extraterritorially Criminalizing the Provision of Material Support to Terrorists and Foreign Terrorist Organizations, 22 Conn J, Int’l L. 313, 321 (2007)).

The scope of protective application, therefore, differs from one legal system to another, and over the years, it has also been altered by legislation, in view of the changing needs of the times, such as the extension introduced in the United States. The scope of the protective principle, insofar as national security is concerned, is flexible, in accordance with concrete national requirements. A state is entitled to define the scope of protective application for itself. I do not believe that the change in the wording of the Law in the framework of Amendment 39 was intended to cause a revolution and a constriction.

 

From the General to the Specific

34.                   The Appellant traded in weapons and conspired with operatives of a terrorist organization whose aim was to harm Israel’s security. These acts posed a great danger to the security of the State of Israel. The Appellant traded in weapons with Popular Front operatives on a large scale, the weapons that were delivered were suitable for hostile terrorist activity, and the trade was conducted in the early days of the second Intifada. One of the ISA investigators even testified that the weapons supplied by the Appellant to the Popular Front were destined for purposes of hostile terrorist activity against Israel (pp. 85-86 of the transcript). Even if these were not offenses that intrinsically endanger national security, nevertheless, by virtue of their circumstances, the offenses materially endangered the security of the State of Israel and its inhabitants. The District Court ruled that the Appellant knew with near certainty that the weapons that he delivered were intended for use against the State of Israel. I see no reason to intervene in this conclusion. The Appellant was very familiar with the activities of the Popular Front. In the past, he was a member of the organization, and even headed one of its cells. In addition, in the past, he participated in military exercises of the Popular Front, and studied abroad with funding from the Front (Memo P/9). From these findings it emerges that the Appellant was aware with near certainty that the weapons were intended to harm the security of the state. This knowledge – with its practical repercussions for national security – overshadows the economic motive for the acts, and is equivalent to an intention to harm security (see and compare: CrimA 172/88 Vanunu v. State of Israel [14] at p.  295-297; LCrimA 9818/01 Biton v. Sultan [15]). Hence, there is no bar to the application of Israeli law to the Appellant by virtue of the protective nexus.

35.                   The Appellant’s knowledge that his acts posed a great danger to Israel’s security has ramifications for the question of the right to due process. In Rosenstein v. State of Israel [4], the Court considered the question of whether the extension of the application of Israeli law to a person who normally would not be subject to it involves a breach of the person’s right to due process. The Court considered the matter in terms of both principle and practice (at pp. 390-392). Referring to US law, it was noted that, in principle, a person whose acts are known to have repercussions within the borders of a foreign country exposes himself to prosecution under that country’s laws, and his contention that his right to due process was violated will not be heard. This is the case in the present matter. The Appellant knew, as we have said, with a high level of certainty that his acts would entail harm to Israel’s security and he can only blame himself for the fact that Israel now seeks to prosecute him according to its laws. The practical aspect involves the question of whether expansion of the application makes it difficult for the Appellant to plead his case, to bring witnesses etc. Such arguments cannot be raised in the abstract – concrete obstacles must be identified. The Appellant did not do so.

36.                   Thus, the Appellant carried out acts that presented a real danger to the security of the State of Israel. He knew, with near certainty, that the weaponry in which he was dealing would be used to harm Israel. This knowledge is equivalent to intention. The offenses of weapons dealing and conspiracy that are ascribed to the Appellant, which constitute foreign offenses, are admittedly not intrinsically directed against national security. However, the finding that the circumstances of the acts substantiating these offenses create a threat to security, is sufficient to determine that the relevant penal provisions apply extraterritorially to the Appellant.

 

Double Criminality and Specific Nexus between the Offense and the State

37.                   The Appellant argued that s. 144(b2) of the Penal Law, under which he was charged, applies only to the territory in which the act was perpetrated, since the actus reus of this section includes a requirement that trading in weapons be carried out “without lawful permission”. His contention is that application of this penal provision extraterritorially is unreasonable, for it would mean the criminalization of all arms trade carried on outside of the state if done without the permission of the authorities in Israel, even if it was in no way prohibited under the laws of the place in which it was executed. He also argued, as will be recalled, that for the purpose of a conviction of the offense of conspiracy to commit an offense outside of Israel, the criminality of the substantive offense under the laws of the place in which it was carried out must be proven. I will discuss these arguments in the order presented.

The penal provisions under which the Appellant was charged apply, as stated, by virtue of the protective nexus. Therefore, the question of whether his acts are punishable in the territory in which they were perpetrated is immaterial. The protective nexus prevails, and the foreign law does not restrict its scope. This means that for the purpose of extraterritorial application by virtue of the protective nexus, there is no requirement of double criminality (see: s. 9(a) of the Penal law; Feller, at p. 278; CrimA 163/82 David v. State of Israel [16], at p. 647 (hereinafter: the David case)).

The significance of the absence of double criminality is that the act or omission that occurred outside the borders of the state is liable to incur criminal liability in Israel even if it does not constitute an offense in the place in which it took place (the David case [16], para. 35, at p. 647). The Court reiterated this in the Alshahra case [6], where it considered the far-reaching implications, from the point of view of the accused, of extending the application of the penal laws beyond territorial borders, and their application to acts committed outside the territory of the state by virtue of the protective nexus. It was pointed out there, in reliance on the said section of the David case, that extension of territorial application requires great caution, inter alia because the act or omission might not in any way constitute an offense outside of Israel (the Alshahra case [6], para. 25). In the present case, the harm, anticipated with a high degree of probability, to the security of the state constitutes a connecting link, a type of “normative bridge” connecting the event that occurred outside the borders of the state to the penal law of the State of Israel (see the Oiku case [3], at pp. 38-39; following the abovementioned case of A. v. State of Israel [2]; the Rosenstein case [4]). We therefore determined that the element of harm to national security was present. We must now “transport” that entire event over that normative bridge into the territory of Israel, and examine whether the act would have constituted an offense if committed in Israel. In the Oiku case [3], the petitioner was tried in Israel for exporting drugs from Holland to various countries. The petitioner argued that he could not be tried for an export offense since the export of drugs that was prohibited under the Drugs Ordinance was the export of drugs from Israel, whereas in his case the drugs were exported from Holland. This Court dismissed that argument and ruled, on the basis of the universal interest in stopping the drug trade, that the extraterritorial principle should be applied to the petitioner’s case by way of “reconversion” or “hypothetical criminality”. As elucidated in the Oiku case [3], adopting such a technique is not justified in every case, but only in those cases in which the purpose of the legislation that extended the application of Israeli law beyond the borders of the state provides justification for doing so, and in cases in which the offense for which conviction is sought involves protected social interests that are not local in nature (the Oiku case [3], end of para. 14, pp. 46-47, 49). The weapons offenses of which the Appellant was accused are not of a local nature. They were designed to preserve public order. Admittedly, in our case, we do not know whether trading in weapons or the transfer of weapons from one person to another for no consideration did or did not require a permit in the Gaza Strip at the relevant time. This, however, is immaterial. Once we found that it was highly probable that harm would be caused to the interest of national security as a result of the trade in which the Appellant engaged, the fact that the particular act was permitted in the Gaza Strip, or permitted when accompanied by a permit, is irrelevant, because Israel’s societal interest in protecting national security is in any case harmed – whether the Appellant had a permit for the trade from the authorized body in the Gaza Strip or whether no such permit was necessary. In my opinion, we must therefore say simply that trade in weapons in the Gaza Strip (or elsewhere), in the knowledge that there is a high degree of probability that this will be injurious to the security of the State of Israel constitutes, in Israel, an offense under s. 144(b2) of the Penal Law. As opposed to this, offenses involving trade in weapons in foreign states, when they will have no impact on the State of Israel, will not be considered foreign offenses in Israel, and the concern of counsel for the Appellant that all weapons offenses worldwide will be caught in the net of foreign offenses is unwarranted.

The Appellant’s argument concerning the offense of conspiracy must be dismissed as well. As will be recalled, the offense of conspiracy to commit a felony is prescribed in s. 499(a)(1) of the Penal Law, as follows:

                                  499. (a)              If a person conspires with another to commit a felony or misdemeanor, or to commit an act in a place abroad which would be a felony or misdemeanor if it had been committed in Israel – and which also is an offense under the laws of that place, then he is liable –

(1)     if the offense is a felony, to seven years imprisonment or to the punishment prescribed for that offense, whichever is the lighter punishment; [emphasis added – M.N.]

The offense that is the object of the conspiracy attributed to the Appellant was committed, as will be recalled, outside of Israel. The Appellant argued that according to the last part of s. 499(a)(1), incrimination for a conspiracy whose purpose was the commission of a crime outside of Israel is possible only if the offense that is the object of the conspiracy constitutes a criminal act under the laws of the place where it was committed. In other words, there must be double criminality. The Appellant argues that in our case, because the offense that was the object of the conspiracy was committed outside of Israel, a conviction for conspiracy to commit that offense is only possible if the elements necessary for criminal liability are present in the place of commission. We cannot accept this interpretation. The last part of s. 499(a)(1) extends the territorial application and prescribes that a conspiracy that was formed within the borders of the state is punishable even if the offense that is the object of the conspiracy was to be committed outside of Israel (and see Feller, at p. 259). In the case before us, the locus of both the conspiracy and the offense that is the object of the conspiracy is outside the state. The offense of conspiracy and the offense that was the object of the conspiracy are foreign offenses to which the regular laws concerning applicability apply. In other words, double criminality is not required as a condition for conviction of the offense of conspiracy.

We should, however, clarify that domestic law does not apply extraterritorially to the offense of conspiracy simply because we found that it applies to the offense that is the object of the conspiracy. It is necessary to determine whether domestic law applies independently to the offense of conspiracy, under the regular laws governing extraterritorial application. Indeed, prior to Amendment 39, the Penal Law stated that if domestic law applied to the offense that was the object of the conspiracy, then it also applied automatically to conspiracy to commit that offense. However, this provision was repealed in the framework of Amendment 39 (see Feller and Kremnitzer, at p. 201). In any case, in the present matter the offense of conspiracy to deal in weapons, like the offense of trade in weapons itself, was committed in circumstances which, as the Appellant knew, posed a danger to national security with a high degree of probability. Therefore, domestic law applies independently to the offense of conspiracy by virtue of s. 13(a)(1) of the Penal Law.

Moreover, even if I were to conclude that the conviction for the offense of conspiracy should be set aside, this would not affect the Appellant’s sentence, for the court does not impose additional punishment – where the substantive offense has been proven – for the conspiracy that preceded the offense (see e.g. CrimA 9995/05 State of Israel v. Rabinowitz [17], per Justice E.E. Levy, at para. 9, and the references there).

This concludes the discussion of the question of jurisdiction. I shall now move on to the question of the admissibility of the Appellant’s confession and its weight.

 

Admissibility of the Appellant’s Confession and its Weight

38.                   The Appellant presented detailed arguments relating to the admissibility of the confession P/4 and to its weight. In effect, however, most of his arguments amount to an application to intervene in the trial court’s factual findings and its determinations concerning credibility. As a matter of principle, an appellate court will be reluctant to intervene in findings of fact and the credibility of witnesses, and in the present case I see no justification for deviating from this principle. Concerning the confession and its admissibility, the Appellant argued, as stated, that his confession was made following the application of improper techniques in the course of the interrogation. However, in his testimony, the Appellant argued that he did not say any of that which was attributed to him in P/4. He also claims that what appears in the memoranda of his various interrogations, including memorandum P/9 that describes the Appellant’s involvement in weapons trade with the Popular Front (as described above), is not true. The Appellant testified that “I in no way thought, even when I was forced to sign, that I was signing on any kind of confession” (p. 41 of the trial transcript). According to the Appellant, despite the pressure applied in the interrogation, he refused to give any incriminating information, and in his words in his testimony, “I am not prepared, even if I should be murdered, to say things that are not correct, and what was correct I wrote” (p. 133 of the transcript). Indeed, as noted in the opinion of the District Court, here we have contradictory arguments on the factual plane, which weaken the Appellant’s contention that his confession was made under coercion (see and compare: CrimA 6613/99 Semirak v. State of Israel [18], at p. 544 (hereinafter: the Semirak case)).

39.       In his appeal, the Appellant insists that it was the improper means of interrogation that led to the confession in P/4. It was argued that the findings of the District Court – that the interrogations of the Appellant were drawn out and harsh, he was permitted only few hours of rest and sleep, and sometimes he did not know when the interrogations were going to end – attest to the use of improper methods of interrogation. He also adds that he was handcuffed until he bled, and that food was withheld. These improper means of interrogation justify, so he contends, the voiding of the confession and at least, a significant lessening of its weight. These arguments, too, must be dismissed.

The District Court found – and I find no reason to interfere in these findings – that prior to making the statement in P/4, no improper methods were employed in the Appellant’s interrogation. The interrogation methods described in the judgment of the District Court, such as the Appellant not knowing when the interrogation would end, refer to the whole duration of the Appellant’s interrogations, which, as will be recalled, continued until the middle of August, 2006. The Appellant, however, challenges the admissibility of his statement P/4, which was recorded on the first day of his arrest. In examining the admissibility of this statement and its weight, therefore, the District Court was correct in considering the interrogation methods that were employed up until the time that this statement was made. In this context, the District Court found, relying on the testimony of the interrogators, on the one hand, and on its impression of the Appellant’s testimony on the other, that in the course of the ISA interrogation that preceded the transcription of statement P/4 and during its transcription, no improper methods of interrogation were used on the Appellant. There is no justification for interfering in these findings. As stated by the ISA interrogators, whose testimonies were consistent and detailed, the atmosphere in the interrogation to which memorandum P/9 relates was good, and during that session the Appellant drank coffee and smoked cigarettes. The interrogation did indeed continue for 9 hours, but this was necessary for the purposes of the interrogation, and it cannot be said that this affected the Appellant’s ability to insist on his innocence. Memorandum P/9 reflects what went on in the interrogation. The memorandum is detailed, and contains a record of the time of the interrogation and its duration. Furthermore, in the appendix to memorandum P/9, which the Appellant signed, there is a statement that the Appellant was informed of his right to remain silent in the interrogation. In these circumstances, what is recorded in the memorandum may be relied upon as support for the testimonies of the interrogators (see the Semirak case[18], at p. 548.

The District Court was also convinced of the reliability of the testimony of the police interrogator Harladin, who took down statement P/4 (and was the only one present when it was taken down), to the effect that the Appellant was alert at the time of the interrogation, and that he was not forced to sign the statement. The Appellant’s testimony, on the other hand, contained contradictions and inaccuracies. Thus, for example, the Appellant claimed in his testimony that he complained to the judge in the arrest hearing about the way he was being treated by his interrogators. However, as noted in the decision, no mention is made of this in the transcript of the hearing on the application to extend the arrest. The Appellant further argued that his statement P/5 is a faithful representation of what happened. In his testimony, however, he added details that did not appear in the original. Neither did I find any cause for intervening in the determination that the police investigation in which the statement was taken down was separate from the ISA interrogation, and that P/4 is not a “reproduction” of P/9. The police interrogation took place three hours after the completion of the ISA interrogation, in the course of which there was no further interrogation; the Appellant was cautioned in Arabic; the police investigator introduced himself as a policeman; between P/4 and P/9 there are differences, the most material of which is that in P/4 the Appellant denied his participation in an attempt to launch a rocket, whereas P/9 records that he confirmed that he had participated in the attempt. These circumstances attest to the existence of the required separation between the ISA interrogation and the police interrogation (see and compare: the Semirak case [18], at pp. 550-551).

40.       The Appellant also argued that the fact that the statement was transcribed in the Hebrew language, rather than in the language in which it was spoken – Arabic – negates its admissibility, or at least reduces its weight.

Section 8 of the Criminal Procedure (Interrogation of Suspects) Law, 5762- 2002 states that if the suspect’s interrogation at the police station was recorded in writing, this record shall be in the language in which the interrogation was conducted, and if it is not possible to record the interrogation in the language in which it was conducted, a visual or audio record should be made. In our case, this requirement was not fulfilled. In an ordinary case, such a defect might have significantly reduced the weight of the confession, and it is even possible that it would have affected its very admissibility. However, in certain circumstances, the weight of the statement may be judged on its substance in order to decide whether the record departs from the truth (see: CrimA 2285/05 State of Israel v. Hemed [19], per Justice E.E. Levy at  para. 4; CrimA 3687/07 Tochly v. State of Israel [20], per Justice S. Joubran, at  para. 12; and cf. CrimA 2180/02 Kassem v. State of Israel [21]).  In this case, it cannot be said that the recording of the statement in Hebrew affects its weight in a material way. The police interrogator who took the testimony speaks Arabic fluently, and he testified that he made a simultaneous translation of everything that the Appellant said. Furthermore, after the statement was transcribed, he translated it for the Appellant, who then signed it. The statement in question is detailed, and its contents are similar – although not identical – to what the Appellant said in the ISA interrogation, which was documented in memorandum P/9. The Appellant, on his part, insisted in his testimony that he did not tell his interrogators anything, and that he did not know what was written in the statement. Consequently, he did not raise specific arguments relating to distortions that resulted from the manner in which the statement was recorded. In the above-mentioned Semirak case [18], too, the circumstances of which were similar, it was ruled that the weight of the statement was not affected (at p. 552). Also, the statement found support in the statements of Shafik al-Brim and Emad Hassin. In his appeal, the Appellant did not argue against the admissibility of those statements or against their contents. In these circumstances, despite the defect in the recording of the statement, there is no basis for doubting the reliability of the translation. Thus, the defect does not materially reduce the weight of the statement. As for P/5 – I accept the ruling of the District Court that what is described in P/5 adds to what is stated in P/4 and does not contradict it. In light of this, the Appellant’s arguments must be dismissed insofar as they relate to the admissibility of his confession and its weight.

 

The Punishment

41.       The Appellant delivered weapons, on a large scale, directly into the hands of a terrorist organization whose aim is to harm the State of Israel. The Appellant even participated in a test of the explosive material conducted by the members of the organization. In view of the type of arms that were delivered and the scale of the operation on the one hand, and the danger this posed to the State of Israel and its population on the other, the acts of the Appellant are very grave. This Court has already said that the heinous nature of the acts of terror themselves projects onto the grievousness of the acts of those who participate in the chain of terror at any of its stages. This Court has set a policy of harsh, deterrent sentencing for those who participate in the chain of terror, as stated in CrimA 3944/08 Sha’aban v. State of Israel [22] per Justice Y. Danziger, at  para. 7):

This Court has often emphasized the need to impose deterrent, appropriate sentences in respect of each and every link in the chain of terror … (CrimA 1358/09 Dahar v. State of Israel [23]).

Furthermore:

The State of Israel’s battle against murderous terror is not only a battle against the perpetrators and those who dispatch them, but against all those who, in some form or another, “grease the wheels” of the machinery of terror, and against every person who constitutes a part of this “chain of death”. Every single level of activity of the terrorist organizations requires an appropriate legal response in the framework of the war on terror … (CrimA 4352/08 A. v. State of Israel [24]).

It is immaterial if the acts were perpetrated with the intention of harming national security or if the motive was financial profit (see the Hamed case [13], at para. 10).  In any case, in the present matter the Appellant knew with near certainty that the weapons that he was delivering to the Popular Front would be used in the organization’s activity against Israel – this knowledge being equivalent to intention – and the profit motive in his actions enhanced his support for the organization and its aims. In addition, in the past the Appellant had been an active member of the Popular Front. These circumstances exacerbate the severity of the deeds. The absence of proof that the weapons were actually used in activity against the State of Israel is also immaterial (see and compare: the El Najar case [9]).  The sentence imposed by the District Court is detailed and reasoned, and it is evident that appropriate weight was given to the various considerations, including the Appellant’s personal situation, and the fact that his criminal activity continued for a relatively short period of time. The sentence that was imposed comports with the severity of the deeds, and there is no justification for intervening here.

The Appellant submitted medical documents concerning the medical situation of his wife, who is suffering from a serious illness and is being treated in the Sheba Hospital. The Respondent, on its part, argued that the documents show that the Appellant’s wife was released from hospital on Nov. 16, 2009, and that by then she had received the appropriate treatment and her life was not in danger. In view of this, said the Respondent, the medical situation of the Appellant’s wife cannot change the picture in relation to the overall considerations for punishment or justify intervention in the sentence. The Appellant argued, in response, that his wife’s health remained precarious, and that she is receiving treatment in a hospital in the Gaza Strip. He attached a medical document dated April 24, 2011 in support of this argument. Even if the wife’s situation remains difficult, the document attached by the Appellant is illegible, and its contents were not specified in the Appellant’s notice. The Appellant’s response does not show that his wife is hospitalized or that she requires assistance on a daily basis. There is not enough here to justify intervention in the severity of the sentence, which in general will occur only in those cases in which the trial court departed radically from the appropriate sentencing policy (see e.g. CrimA 6566/10 Veridat v. State of Israel [25]).

42.                   In conclusion, I recommend that my colleagues dismiss both parts of the appeal.

43.                   The trial in the District Court was held in camera, and the judgment was not reported. The judgment raised questions of principle, and the Respondent is therefore requested to address, within 15 days, the question of whether there is any obstacle to reporting this judgment in whole or with redactions. We will then ask for the response of counsel for the Appellant.

 

Justice E. Arbel

I concur in the comprehensive opinion of my colleague Justice M. Naor.

 

Justice Y. Danziger

1.                     Having examined the comprehensive, learned opinion of my colleague Justice M. Naor, I have decided to concur in her opinion, both with respect to the reasoning and with respect to the outcome. I accept Justice Naor’s conclusion, for the reasons elucidated in her opinion, that Amendment 39 to the Penal Law did not change the normative situation regarding the scope of application of protective jurisdiction vis-à-vis the normative situation that pertained prior to the Amendment. I also agree with Justice Naor’s determination that:

…the protective nexus is confined to the protection of certain fundamental national interests, but not exclusively to offenses that are intrinsically prejudicial to those interests. Extraterritorial jurisdiction may also apply to acts –constituting offenses – whose circumstances indicate that they present a serious risk to these interests, or that there is an intention to harm them [emphasis original – Y.D.] (para. 31 of Justice Naor’s opinion).

2.                     At a time when civilian settlements within the sovereign territory of the State of Israel are subjected to terror attacks from the terrorist organizations, and when missiles and mortar shells rain down on these areas and cause injury to persons and property, the legal system cannot sit idly in the face of an objective need to bring any person who participates, directly or indirectly, in terrorist activity directed against concentrations of Israeli citizens to justice, and this includes those who supply weapons and ammunition to terrorist organizations.

In practice, international law leaves the job of prosecuting terrorists in the hands of the various states, according to their domestic law (see: Emmanuel Gross, The Struggle of Democracy with the Terror of Suicide Bombers – Is the Free World Equipped with the Moral and Jurisprudential Tools for this Struggle? Dalia Dorner Volume 219, 293 (2009)). Those who are involved in “the terrorist enterprise” in all its forms should be aware that the fact that they are operating outside the sovereign borders of the State of Israel does not grant them immunity from prosecution in the courts of the State of Israel. 

3.                     As for the language in which the Appellant’s statement was recorded, I agree with Justice Naor’s conclusion that despite the defect in the recording of the statement – i.e. that the statement was not recorded in the language in which the interrogation of the Appellant was conducted (Arabic), notwithstanding the provision of s. 8(1) of the Criminal Procedure (Interrogation of Suspects) Law, 2002 (hereinafter: the Interrogation of Suspects Law), nor was there a video or audio recording as required under s. 8(2) of the above Law where “it is not possible to record in writing the interrogation of the witness in the language in which it was conducted ” – in the concrete circumstances of the particular case, we are dealing with an admissible statement to which full weight must be attributed, inasmuch as “the Appellant did not raise specific arguments relating to distortions that resulted from the manner in which the statement was recorded” (para. 40 of Justice Naor’s opinion).

4.                     However, I do believe that a few points warrant mention. As a rule, the case-law directs that notwithstanding the provision of s. 8(1) of the Interrogation of Suspects Law, where the court is convinced that even though the confession was not transcribed in the language in which the suspect was interrogated, it accurately reflects what the suspect said in his interrogation, the confession will be admissible and full weight may be attributed to it (see, for example, the opinion of Justice E.E. Levy in the Hamed case [13] to which Justice Naor referred in para. 40 of her opinion). Frankly, this approach – in my opinion – renders s. 8(1) meaningless, and I believe that it is problematic. In practice, it is the direct continuation of the accepted approach in the case law of this Court prior to the enactment of s. 8 of the Interrogation of Suspects Law (see e.g.: CrimA 5225/03 Habas v. State of Israel [26], at p. 31).

5.                     It therefore appears that there has been no change in the approach of the case law to the matter of the language in which the suspect’s confession was recorded, despite the clear, explicit directive in the Interrogation of Suspects Law. The question arises: Does not the enactment of this Law attest to a change of direction in relation to the appropriate position on the language in which the suspect’s confession was recorded? I am of the opinion that the Interrogation of Suspects Law – which constitutes an additional expression of the trend to enhance the rights of suspects and accused persons as part of the “constitutional revolution” – sought to introduce a substantive change in the normative situation that pertained prior to its enactment. The legislature is deemed not to waste its words, yet, nevertheless, I think that the case law has not given full expression to the change that the legislature sought to bring about in  relation to the manner of recording the confession of a suspect.

6.                     Due to the importance of the confession that the accused made at the time of his questioning by the police, which in many cases can ground the conviction of the accused (see and compare: Dalia Dorner, The Queen of Evidence v. Tarek Nujidat, 49(1) Hapraklit (2006), 7, 8 (Hebrew)), the police must be absolutely meticulous in its recording of the confession so that it reflects as accurately as possible the contents of the statements of the suspect and the manner in which they were made. The only possible way of ensuring this is by complying with the statutory provisions concerning the language in which the confession is recorded, for there is no more efficient and certain means than recording the suspect’s confession in its original language in order to describe what he said to his interrogators. The process of translation of the suspect’s confession into Hebrew is liable, unfortunately, to distort the confession and even to detract from the meaning of what the suspect said, since in every language there are subtleties and expressions that cannot always be accurately translated, but which are sometimes essential for an understanding of the spirit of the suspect’s confession and the process of its delivery. In certain cases, the translation is even liable to cause things to be taken out of context. Owing, inter alia, to these concerns about possible distortions in the suspect’s confession as a result of the translation, the legislature stipulated, in the framework of s. 8(2) of the Interrogation of Suspects Law, that where the written record of the course of the interrogation is not in the language in which the interrogation was conducted, visual and audio recordings will be made of the interrogation, as is the practice today in most Western states, and this is also what emerges from the Explanatory Notes to the Criminal Procedure (Interrogation of Suspects) Bill [H.H. 2928, 5761 54].  

7.                     Moreover, when the contents of the confession are merely translated for the suspect and he signs the document that was written in a language in which he is not fluent, and when the interrogation is not filmed or taped, one cannot know if the translation, which was done by a translator acting for the police, is reliable. The legislature, too, was aware of the possibility that mistakes in the translation of the confession in the course of the police interrogation may not be entirely innocent:

The proposed amendment constitutes an improvement in the protection of the rights of the accused, and prevents or reduces the possibility of errors, misunderstandings or deliberate mistakes, thereby enhancing the ability of the court to clarify the truth of a question that is so central in criminal law [emphasis added – Y.D.].( Explanatory Notes to the Bill). 

In a situation in which the suspect does not understand what is written in the confession but signs it, who will guarantee that the written document contains the exact, complete statement of the suspect? As long as the interrogation is not recorded audio-visually, the translated confession contains the “seeds of disarray”, and this is what motivated the legislature to lay down the rules anchored in ss. 8(1)-8(2) of the Interrogation of Suspects Law. Indeed, the police enjoys a presumption of regularity, and its actions should not be suspect a priori, but after all, the translation was made in the interrogation rooms, and in the absence of an audio-visual record of the course of the interrogation, there is a real difficulty in conducting effective judicial review of the manner in which the interrogation was conducted and with respect to the reliability of its record.

8.                     Where there is no audio-visual record and the confession was not recorded in the suspect’s language, it is not sufficient, in my opinion, that the contents of the confession be translated for the suspect. Rather, the suspect needs to read his confession for himself, in his own language. This reading of the confession by the suspect, when it is written in his language, immediately after it has been made, is of great importance, for it allows for the correction in real time of mistakes that were made in the transcribing of the confession.

9.                     Furthermore, if the accused later contests the translation of his confession to the police, it will be difficult for the court to decide on such a matter. The accused is unable to produce evidence to support his argument, since the evidence concerning the circumstances of the translation of the confession are usually in the exclusive control of the police, and within the knowledge of the interrogators who were in the room during the interrogation. Therefore, in order to prevent an unnecessary factual disagreement, the rule must be scrupulously observed from the outset, thus obviating a complex retroactive factual investigation, in the framework of which the police benefits from an presumption of regularity that upsets the balance of power vis-à-vis the accused, and is ultimately liable to violate his constitutional rights.

10.       For all the above reasons, I am of the opinion that only limited weight should be attributed to the suspect’s signature on the confession that was translated for him. However, I believe that a breach of the provisions of ss. 8(1)-8(2) of the Interrogation of Suspects Law should have real repercussions not only with respect to the weight of a confession, but primarily at the level of admissibility, in view of the ongoing strengthening of the right to a due process at all stages, as expressed in the case-law exclusionary doctrine, and in view of the recognition of due process as a constitutional right (CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [27]).

11.              In CrimA 8974/07 Honchian v State of Israel [28], I emphasized that a breach of the obligation regarding the transcription of a suspect’s confession in the language in which he was interrogated is liable to entail the exclusion of the confession by virtue of the right to a due process:

In this context, it should additionally be noted that this Court has more than once insisted on the importance of the fact that the suspect should understand the substance of the accusations against him and the nature of the interrogation process that is being conducted., On this basis, the case law established that “the obligation to record the confession in the language of the person being interrogated is of great importance, and we take a dim view of the continuing disregard by the police of this Court’s repeated directive that statements must be taken down in the original language (see e.g. the opinion of (then) Justice D. Beinisch in CrimA 1746/00 Barilev v. State of Israel [29], at p. 147 (hereinafted: the Barilev case); and see and compare in this regard, the judgment of this Court in CrimA 3477/09 State of Israel v. Hadad [30], para. 29 of my opinion). The fundamental purpose of this jurisprudential policy is to ensure the maintenance of proper procedure, and it must be scrupulously observed as a guarantee for the discovery of the truth and to ensure human rights and the rights of the suspect being interrogated and the accused. Therefore, in the Barilev case [29], it was determined that in certain circumstances, violation of this provision is likely to lead to the exclusion of the confession of the suspect due to the breach of the right to a due process:

It is clear that in the appropriate case, when the statement that was taken thus gives rise to a suspicion as to its reliability due to it not being recorded in the original language, we will not hesitate to exclude it, and in any case, we may not assign any weight to it. Moreover, if the police continue to disregard its standing orders and directives in this matter, there may be no option, in the appropriate case, other than to give expression to the gravity of this misconduct by excluding the statements. We would add that we are prepared to assume that the police interrogators face a difficult task in conducting investigations involving complainants, witnesses and accused persons who speak different languages and are not fluent in Hebrew.  This is part of our reality. This reality cannot provide an exemption from the need to find solutions that will ensure protection for the accused and due process (the Barilev case [29] , para. 7 of my opinion).

12.              Therefore, the consequences of a breach of the duties imposed on the police regarding the documentation of a suspect’s confession must be examined from the perspective of due process and in light of the rules that were formulated on this matter in the Yissacharov case  [27].  Obviously, every case will be examined on its merits, in light of its circumstances, and in accordance with the discretion of the court. However, the court must consider the fact that the defect in the language of the documentation of the interrogation is not confined to the technical plane, and the consequences for the weight of the confession alone. Rather,  the defect may be material, such that it will affect the very admissibility of the confession.

 

Decided in accordance with the opinion of Justice M. Naor.

 

Given this day, 26 Heshvan, 5772 (Nov. 23, 2011).

 

 

[Emblem]

 

In the Supreme Court as High Court of Justice

 

   HCJ 390/79

 

Before:                                    The Honorable Justice Landau – Deputy President

                                    The Honorable Justice Witkon

                                    The Honorable Justice Asher

                                    The Honorable Justice Ben Porat

                                    The Honorable Justice Bechor

           

 

The Petitioners:

 

                                    ‘Izzat Muhamamad Mustafa Dweikat et al.

 

                                    versus

 

The Respondent:

 

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

                                   

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

 

Adv. E. Khouri

                                    On behalf of Petitioners 1-16

 

                                    Adv. A. Zichroni, Adv. A. Feldman

                                    On behalf of Petitioner 17

 

                                    Adv. G. Bach, State Attorney

                                    On behalf of Respondents 1-4

                                   

                                    Adv. R. Cohen, Adv. M. Simon

                                    On behalf of the Respondents 5-6

 

 

 

 

Abstract

 

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

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

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

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

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

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

 

Judgment

Deputy President Landau

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

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

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

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

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

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

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

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

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

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

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

 

And it was also said there that:

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

With:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Asher

I agree.                       

Justice Ben Porat:

I agree.

Justice Witkon:

I too believe that the law is with the petitioners.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He adds and says in that same affidavit:

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

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

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

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

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

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

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

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

 

Justice Bechor:

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

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

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

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

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

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

 

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

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

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

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

                 

 

 

The Supreme Court sitting as a High Court of Justice

HCJ 8091/14

 

 

The Petitioners:           1.         HaMoked: Center for the Defense of the Individual

                                    2.         Bimkom – Planners for Planning Rights

                                    3.         B'Tselem – The Israeli Information Center for Human Rights

                                    4.         The Public Committee against Torture in Israel

                                    5.         Yesh Din – Volunteers for Human Rights Organization

                                    6.         Adalah – The Legal Center for Arab Minority Rights

                                    7.         Physicians for Human Rights

                                    8.         Shomrei Mishpat – Rabbis for Human Rights

 

v.

 

The Respondents:       1.         Minister of Defense

                                    2.         Commander of Military Forces in the West Bank

 

 

Petition for an order nisi

 

 

Hearing Date:              11 Kislev 5775 (December 3, 2014)

 

For the Petitioners:      Adv. Michael Sfard; Adv. Noa Amrami; Adv. Roni Pelli

 

For the Respondents:  Adv. Aner Hellman

 

 

Before: Justice E. Rubinstein, Justice E. Hayut, and Justice N. Sohlberg

 

Judgment

Justice E. Rubinstein:

1.         This Petition concerns the Respondents’ power to employ Regulation 119 of the Defense (Emergency) Regulations, 1945 (Regulation 119, or the Regulation) in a manner that permits the confiscation, demolition and sealing of the houses of persons suspected of involvement in hostile activity against the State of Israel (the Regulation was originally promulgated during the British Mandate). The Petitioners ask that this Court issue a declaratory order whereby the exercise of Regulation 119 in this manner and for such purposes is unlawful since, in their opinion, it is repugnant to international law and to Israeli constitutional and administrative law.

The Parties’ Arguments

2.         As aforesaid, this Petition focuses upon Regulation 119 (in its current language) which reads as follows:

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

3.         The Petitioners are eight organizations that act for the protection of human rights in Israel and in the Administered Territories. They do not dispute that the central arguments raised in this Petition regarding the lawfulness of the exercise of the said Regulation 119 have been raised and rejected in this Court in the past. However, they argue that this Court’s rulings in this regard were issued many years ago, in the context of only two judgments and with laconic reasoning – HCJ 434/79 Sahwil v. Commander of the Judea and Samaria Region, IsrSC 34 464 (hereinafter: the Sahwil case) and HCJ 897/86 Ramzi Hanna Jaber v. GOC Central Command et al. IsrSC 41(2) 522 (hereinafter: the Jaber case) – and it is time to revisit the normative justification which, at the time, grounded those judgments. It was further argued that since the time these issues were addressed, there have been significant developments in international law, including the establishment of the various war-crime tribunals throughout the world, and it is therefore necessary to revisit the various issues. Note that the vast majority of the Petitioners’ arguments concern the State’s authority to employ Regulation 119 in the Administered Territories, and not within the borders of the State of Israel.

4.         On the merits, it was primarily argued that Regulation 119 is subject to the provisions of international law, which prohibit the demolition of houses as constituting collective punishment and therefore, as aforesaid, the demolition of houses should not be permitted by virtue of the Regulation. The Petitioners’ arguments are supported by opinions of legal experts: Prof. Yuval Shani, Prof. Mordechai Kremnitzer, Prof. Orna Ben Naftali and Prof. Guy Harpaz.

5.         With respect to the normative hierarchy, it was argued that, contrary to this Court’s ruling in the Sahwil case and in the Jaber case, Regulation 119 is subject to the norms and prohibitions of international law. This is particularly so when it pertains to the application of the Regulation in the Administered Territories, inasmuch as the argument that domestic law, including Regulation 119, prevails over international law, is not applicable. It is argued that Regulation 119 constitutes foreign law that Israel “inherited” from the previous regime, and therefore the rationales for respecting domestic law, even when it conflicts with international law, do not apply. It was further argued in this context that in accordance with the presumption of compatibility,  which was adopted by our legal system as well, Regulation 119 ought to be interpreted, insofar as possible, in accordance with the provisions of international law, i.e., such that the demolition of houses by virtue thereof is impermissible as currently carried out.

6.         Regarding the provisions of international law, it was argued that there is a consensus in legal academia that the demolition of houses contravenes the customary international prohibition on collective punishment, both with respect to the prohibition on demolition of the property of a protected person without an operational need, and with regard to disproportionate use of force, and is therefore unlawful. This is especially so when the subject matter is the law of occupation which applies, so it is claimed, to the Administered Territories, even if the declared purpose of the Respondents in our case is solely deterrence. Thus – as argued – the question is not the underlying intention, but the result, i.e. the demolition of houses of innocent persons due to the activity of others who are related to them. The prohibition on collective punishment was initially established in Article 50 of the Annex to the Hague Convention: Regulations Respecting the Laws and Customs of War on Land, and is currently established in Article 33 of the Fourth Geneva Convention, which states as follows:

                        No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited [Geneva Convention Relative to the Protection of Civilians During War, 1949 Kitvei Amana 1, p. 559].

In addition, the Petitioners refer to the Red Cross Commentary of 1987 on Protocol I of 1977 to the Fourth Geneva Convention, which determines the following:

                        The concept of collective punishment must be understood in the broadcast sense: it covers not only legal sentences but sanctions and harassment of any sort, administrative, by police action or otherwise [Commentary on Additional Protocol I of 1977 to the Geneva Conventions of 1949, p. 874, para. 3055 (1987),       available at:

https://www.icrc.org/ihl/COM/470-750096?OpenDocument].

7.         In addition, it was argued that the Regulation also violates basic principles of Jewish law. In this context, the Petitioners refer to the affair of the destruction of the city of Sodom in the book of Genesis, in which Abraham says to God: “Far be it from You to do a thing such as this, to put to death the righteous with the wicked so that the righteous should be like the wicked. Far be it from You! Will the Judge of the entire earth not perform justice?” (Genesis 18:25); and to the affair of Korach, in which Moses and Aaron claim before God: “If one man sins, shall You be angry with the whole congregation?” (Numbers 16:22). Rashi comments there: “The Holy One, Blessed Be He said: You have spoken well. I know and will make known who sinned and who did not sin”.

8.         It was further argued that the demolition of houses is also forbidden by virtue of the prohibition on arbitrary destruction of property, which is established, inter alia, in Article 53 of the Fourth Geneva Convention, and which – it is argued –  is deemed part of customary international law:

                        Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

Because the demolition of the houses cannot be said to amount to “military operations [where] such destruction is rendered absolutely necessary”, it was argued that Regulation 119 should not be interpreted as permitting such demolitions.

9.         The Petitioners also refer to the position of international criminal law on the issue. It is argued that although Israel has not ratified the Rome Statute of the International Criminal Court of 1998 (the “Rome Statute”), the war crimes defined therein amount to severe violations of humanitarian international law, and therefore, the provisions therein are binding on Israel. So for example, Article 8(2)(a)(4) of the Rome Statute prohibits extensive destruction of property not justified by military necessity, and accordingly, the International Criminal Tribunal for the former Yugoslavia – ICTY – ruled that such destruction is only permitted when “such destruction is made absolutely necessary by military operations” (The Prosecutor v. Blaskic, IT-95-14-T, par. 157 (2000)), which is not the case here, where the purpose of the destruction is, at most, deterrence.

10.       It was further argued that the exercise of Regulation 119 for the purpose of the demolition of houses violates the principle of proportionality in international law and Israeli law. This is the case since the harm caused to innocent civilians by the demolition of their houses is tremendous, while the benefit from the demolition of the houses – ostensibly deterrence – is not achieved. In this context, the Petitioners refer to a presentation assembled by a committee headed by Major General Ehud Shani, which examined the issue of house demolitions in the years 2004-2005. The presentation stated that the demolition of houses “intensifies the historic homelessness trauma” (Slide No. 14), and leads to “illegitimacy; absurdly” (Slide No. 27), and hence the conclusion – “the act is no longer legitimate and is borderline legal!!!” (Slide No. 28).

11.       Peripherally, it was argued that Regulation 119 is exercised in a discriminatory manner. This is the case since the Regulation has been exercised only against the Arab population, although Jewish terrorists have been caught in the past who were suspected, indicted or convicted of crimes no less severe that those of the Arabs. It was further claimed in this regard that the argument previously made by the security forces that deterrence is not necessary among the Jewish population but only among the Arab population, lacks factual foundation and should be rejected.

12.       Conversely, the State claims that the Petition ought to be summarily dismissed. First, it is argued that it is a theoretical, academic petition that is not based on a concrete case, which is sufficient for dismissal. Second, it is argued that all of the claims that are made by the Petitioners were raised and rejected in the past in this Court, the Petitioners in this case were even a party to some of these petitions, and there is no reason to reexamine the issue. The State further noted that the power to demolish houses by virtue of Regulation 119 was exercised only in isolated and particularly severe cases in the last decade, and recently, in view of the wave of terrorism in Jerusalem, the Commander of the Home Front Command issued six demolition orders for buildings in which terrorists who are residents of East Jerusalem lived. One order was carried out, while the case of five others is still pending before this Court in the context of separate petitions that were filed: HCJ 8066/14 and HCJ 8070/14 – the murderous terrorist attack at the synagogue in Har Nof, in which four persons were murdered and others injured; HCJ 8025/14 – a hit-and-run terrorist attack close to Rabbi Moshe Sachs Street in Jerusalem, in which two persons were murdered and others injured; HCJ 7823/14 – another hit-and-run terrorist attack close to Rabbi Moshe Sachs Street in Jerusalem, in which one person was murdered and others injured; HCJ 8024/14 – the stabbing of a person close to the Menachem Begin Heritage Center in Jerusalem, critically wounding him.

13.       On the merits, it was argued that this does not constitute collective punishment and harm to innocent persons. This is so because in many cases of denial of petitions concerning the exercise of Regulation 119 for the purpose of demolishing houses, the Court ruled that the petitioners had not acted in good faith, and were to a certain extent aware of the terrorist’s activity. It was further noted that, in any event, primary legislation prevails over general principles of international law, and therefore, it is not necessary to examine Regulation 119 under the provisions of customary international law. It was also noted that many petitions which pertain to Regulation 119 – including all of the individual petitions that are currently pending before this Court – contemplate the exercise of the Regulation vis-à-vis residents of the State of Israel, and therefore the claims pertaining to the applicability of the law of occupation in the Territories are irrelevant.

 

 

The Hearing before the Court

14.       In the hearing before us, counsel for the Petitioners emphasized their argument that even if the purpose underlying the demolition of the houses is deterrence, this does not mitigate the disproportionate harm to innocent persons as a result of the demolition. It was further argued, as aforesaid, that even if deterrence is achieved – which was not proven as argued by the State – international law prohibits collective punishment as a means of deterrence, and therefore the exercise of Regulation 119 for the aforesaid purpose is wrongful ab initio. It was further claimed that in contradiction to the claims in the State’s response, the issues at bar have not yet been thoroughly deliberated by this Court, and therefore it is proper that the issue be deliberated now, and before an expanded panel.

15.       Counsel for the State responded that it was only several months ago that this Court denied a similar petition which sought to revisit issues of international law, on the grounds that there was no reason to revisit arguments that were previously raised and rejected. As for the collective punishment argument, it was claimed that because the subject matter is that of demolishing the house in which the specific terrorist lived, we are not concerned with collective punishment, but only deterrence. On the merits, it was argued that in a conflict between international law and explicit Israeli law, Israeli law prevails, and therefore the power conferred on the military commander by virtue of Regulation 119 prevails over the customary international law on that issue. As for the discrimination argument, counsel for the State answered that, as aforesaid, we are dealing with deterrence, which is not necessary among the Jewish population, and therefore this is not discrimination but rather a relevant distinction.

Decision

16.       Undeniably, this Petition, by its nature, raises difficult questions. As I noted in the courtroom, it may be easier and more convenient to take the side of the Petitioners over that of the Respondents, and there are certain instances which unquestionably raise a moral dilemma. As I sit to write this judgement, I am like that Talmudic judge mentioned in Jewish law sources, the amora Rav, who said, as he set out to court (Babylonian Talmud, Sanhedrin 7b) “He goes out to perish at his own will” (meaning that should he err, he will be liable for the transgression); and it was further stated that “a judge must always see himself as if a sword rests between his thighs and hell is gaping beneath him”… (Babylonian Talmud, Yevamot 109b), and we judges are also subject to the warning to witnesses (Mishna, Sanhedrin 4:2) “and perhaps you will say, what have we to do with this trouble…”, which Rashi (Sanhedrin 37b) explains to mean “to become involved in this trouble, even for sake of the truth”. However, like the witness, we are under the obligation that: “he who fails to say it, shall bear his iniquity” (Leviticus 5:1), as interpreted by Rashi to mean: “you bear the duty and the liability for the transgression should you fail to speak of what you have witnessed”. This is also the task of the judge, who has no choice but to render judgment. In a similar case, (HCJ 6288/03 Sa’ada v. GOC Home Front Command, IsrSC 58(2) 289, 294 (2003) (hereinafter: the Sa’ada case), Justice Turkel stated that “the idea that the terrorist’s family members are to bear his transgression is morally burdensome... But the prospect that demolishing or sealing the house will prevent future bloodshed compels us to harden the heart and have mercy on the living, who may be the victims of terrorist horror, more than it is appropriate to spare the house’s tenants. There is no avoiding this”.

            The problem is exacerbated by the fact that the Petition is supported by expert opinions, although the law does not require an expert opinion, while the position of the State mainly relies on threshold arguments. However, we shall note from the outset that we do not deem it necessary to reopen questions that were decided by this Court, even if the reasons provided did not satisfy the Petitioners, since similar claims were raised and dismissed but a few months ago in HCJ 4597/15 Awawdeh v. Military Commander of the West Bank Area (July 1, 2014) (hereinafter: the Awawdeh case); and in HCJ 5290/14 Qawasmeh v. Military Commander of the West Bank Area (August 11, 2014) (hereinafter: the Qawasmeh case). We will address the matters concisely, and will first state that limited use should be made of Regulation 119, and indeed, it was not used for several years, also due to the recommendation of the aforesaid Shani Committee. However, it has been argued before us that the circumstances recently emerging – of merciless, repeated killings of innocent victims – require the utilization of the Regulation, and we shall address this matter. Furthermore, the issue should be viewed within the broad context of the war on terror of the State of Israel and the entire world. This war, “for many are the dead that it has felled, and numerous are all its victims (Proverbs 7:26), compels Israel and other nations to exercise measures that were never sought in the first place.

17.       We will begin with a review of the judicial history of Regulation 119 in this Court. It has been held that the purpose of Regulation 119 is deterrence and not punishment; its goal is to provide the military commander with tools for effective deterrence, a purpose the importance of which is undisputable in itself (see HCJ 698/85 Daghlas v. Military Commander of the Judea and Samaria Area, IsrSC 40(2) 42, 44 (1986) (hereinafter: the Daghlas case), HCJ 4772/91 Khizran et al. v. IDF Commander, IsrSC 46(2) 150 (1992), and see the dissenting opinion of Justice Cheshin; HCJ 8084/02 Abbasi et al. v. GOC Home Front Command, IsrSC 57(2) 55,60 (2003) (hereinafter: the Abbasi case); the Sa’ada case, paragraph 19; the Qawasmeh case, paragraph 23). As to the question of whether the demolition of a specific building will create effective deterrence, it was held that this Court does not step into the shoes of the security forces, which are vested with the discretion to determine which measure is effective and should be used for the purpose of achieving deterrence (HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 653-654 (1997); HCJ 9353/08 Hisham Abu Dheim et al. v. GOC Home Front Command, paragraph 5 (2009) (hereinafter: the Hisham case); the Awawdeh case, paragraph 20; the Qawasmeh case, paragraph 25). The State’s response in the individual petitions was supported by an affidavit of the Home Front Commander, Major-General A. Eisenberg. It is important to bear in mind, as problematic as this matter may be, that demolitions were only recently approved in the Awawdeh case, and the Qawasmeh case.

18.       Moreover, the damage caused to the property of the inhabitants of the house, to the extent that they were not involved in the offence for which the demolition was prescribed, cannot be disputed. It was further held that although the Regulation’s validity is not subject to the provisions of Basic Law: Human Dignity and Liberty since they are deemed “law that was in force prior to the taking of effect of the Basic Law” (section 10 of the Basic Law), they are to be construed according to the Basic Law, and the power thereunder is to be exercised proportionately (HCJ 5510/92 Turkeman v. GOC Central Command, IsrSC 48(1) 217; the Abbasi case, at p. 59; the Sa’ada case, at pp. 291-292; the Hisham case, paragraph 5; the Awawdeh case, paragraph 17; the Qawasmeh case, paragraph 22). I wish to stress this issue forcefully, and will return to the matter below.

            As a consequence of this approach, the following criteria, inter alia, were prescribed, defining the boundaries of the authority of the military commander when seeking to exercise the power vested in him under Regulation 119, and ordering the demolition of the house of a suspect of terrorist acts:

The severity of the acts that are attributed to the suspect; the number and characteristics of the parties who may be harmed as a result of the exercise of the authority; the strength of the evidence and the scope of involvement, if any, of the other inhabitants of the house. The military commander is also required to examine whether the authority may be exercised only against that part of the house in which the suspect lived; whether the demolition may be executed without jeopardizing adjacent buildings, and whether it is sufficient to seal the house or parts thereof as a less injurious means as compared to demolition [the Qawasmeh case, paragraph 22 of the opinion of Justice Danziger; see also: HCJ 2722/92 Alamarin v. Commander of IDF Forces in the Gaza Strip (1992) (hereinafter: the Alamarin case); Salem v. Major General Ilan Biran, Commander of IDF Forces, IsrSC 50(1) 353, 359 (hereinafter: the Salem case); the Hisham case, paragraph 5].

            Indeed, according to the case law this is an open list, and the parameters are to be considered as a whole. In other words, the choice to demolish the entire house, in lieu of sealing a room or demolishing a certain part of the house, does not necessarily indicate that the measure that was chosen is disproportionate and justifies the intervention of this Court in the discretion granted, as aforesaid, to the security forces (the Abassi case, pp. 60-61; the Qawasmeh case, paragraph 7). Similarly, it is not necessary to show that the inhabitants of the house were aware of the suspect’s terrorist activity (the Alamarin case, paragraph 9; the Salem case, p. 359; the Hisham case, paragraph 7). As aforesaid, proportionality is examined, first and foremost, in relation to the severity of the act that is attributed to the suspect, from which the required degree of deterrence is derived, and I hereby stress and reiterate the aforesaid criteria, and the meticulous discretion required.

19.       It should be further noted that although this Petition primarily challenges the exercise of Regulation 119 in the Administered Territories, this Court has ruled that the Regulation applies to the residents of the Territories as well as to the residents of the State of Israel (the Hisham case, paragraph 5; the Abassi case, p. 60).

And now to the Petitioners’ arguments.

20.       I will begin by noting that the question of the authority to use Regulation 119 and the discretion as to the manner of its application, i.e. reasonableness, are to be distinguished. As shall be presented below, we shall see – with all due respect – that the authority exists, and that the main question is that of reasonableness and discretion. Referring to the comprehensive discussion held by the Major General Shani Committee at the time, in the previous decade – a Committee that included a senior jurist, the head of the IDF International Law Department – the major points of which are included in the presentation that was submitted, it reveals that use of such a measure is legal under both international and domestic law. As to reasonableness, it was found that “there is a consensus among intelligence agencies about the relation between the demolition of terrorists’ homes and deterrence. In view of the sensitivity, the Central Command conducts a balanced, orderly procedure with respect to the demolition of homes of terrorists… however, deterrence is to be weighed only as a part of the considerations” (from the Committee’s presentation, the emphasis appears in the original). It is noted, however, that according to international and domestic public tests, the act is no longer legitimate and is borderline legal. And yet, after a period of several years during which the Regulation was not used in Jerusalem (2008-2009), and for an even longer period in the Judea and Samaria Area (2005-2014) – see paragraph 23 of the opinion of the Deputy Chief Justice in the Awawdeh case – use of the Regulation has now been renewed due to the frequent and heinous events of intentional harm to innocent people in Jerusalem, murder and attempted murder, as specified above.

21.       As to the authority, the arguments themselves are not new, but have rather been concentrated together, and as noted by the State, some of them were already raised in the past by some or all of Petitioners. In a nutshell, we would note that from a “purely” legal perspective, the territory of the State of Israel and Jerusalem should be distinguished from the Judea and Samaria Area, a distinction which was not made in the Petition. Within the State of Israel itself, Regulation 119 constitutes, as aforesaid, the law – primary legislation – the validity of which is preserved under Section 10 of Basic Law: Human Dignity and Liberty, which treats of the preservation of laws. I would parenthetically note that the Defense (Emergency) Regulations, 1945 – originally promulgated under the British Mandate, as aforesaid, which was the object of the struggle of the Jewish community at the time – are not favored by Israeli jurists, and the replacement thereof was contemplated in the past, albeit not implemented, perhaps due to the chronic security situation and its hardships. However, this is not the place to deliberate the matter. On the merits, it is clear that the validity of the Regulation and the authority to use it within the State of Israel cannot be challenged. Nevertheless, our substantive judicial approach, as distinct from the formal analysis, does not distinguish between the use of the Regulation in Israeli territory and in the Judea and Samaria Area and the reasonableness thereof, and it has already been stated that where officials of an Israeli authority exercise powers in the Judea and Samaria Area, it is to be regarded as based on the same fundamental principles of Israeli law -- in the words of (then) Justice Barak: “Every Israeli soldier carries with him, in his backpack, the rules of customary international public law concerning the laws of war and the fundamental principles of Israeli administrative law” (HCJ 393/82 Jam'iat Iscan Al-Ma’almoun Al-Taounieh Al-Mahdudeh Al-Masauliyeh v. IDF Commander in the Judea and Samaria Area, IsrSc 37(4), 785, 810 (1983); and see also HCJ 591/88 Taha v. Minister of Defense, IsrSC 45(2) 45, 52 (1991)).

As for the application of international law, as far as the Judea and Samaria Area is concerned, and as the Petitioners have noted themselves, this Court has ruled in several cases that the provisions of Regulation 119 are compatible with the law that applies in the Administered Territories (the Sahvil case, paragraph 4; the Jaber case, pp. 525-526; HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander, IsrSC 43(2) 529, 532-533 (1989) [http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-central-...). The authority vested in the military commander by virtue of Regulation 119, which he “inherited” from the administration that governed the region prior to Israeli rule, constitutes, after all, one of the tools available to him for the purpose of accomplishing his main duty, as directed by Article 43 of the Hague Regulations: “to take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”. Further, as stated by Prof. Dinstein, “The choice of means deemed necessary to contend with the problems of control and security is left to the Occupying Power” (Yoram Dinstein The International Law of Belligerent Occupation, 93 (2009). It should be noted, that the author criticizes the demolition and sealing of houses in a considerable number of cases (e.g., at pp. 156 and 159). See also: Article 27 of Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949; J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian. Persons in Time of War, 207 (Geneva, 1958). And as stated by Stone in respect of such matters: “[i]t would thus be very strange indeed to hold that the occupant was forbidden to maintain the existing law when this was necessary for his security” (Julius Stone No Peace, No War in the Middle East, 15 (1969)).

22.       In addition, the 1949 Geneva Conventions, and the preceding 1907 Hague Regulations, were designed and signed at a period that is different to our own. The terrorism with which the world must contend, the State of Israel being no exception, presents complicated challenges since the terrorist organizations do not abide by these or other conventions (see, for example, Hans-Peter Gasser, Acts of Terror, ”Terrorism” and International Humanitarian Law, 847 International Review of the Red Cross, 547 (2002); Glenn M. Sulmasy, The Law of Armed Conflict in the Global War on Terror: International Lawyers fighting; the Last War, 19 Notre Dame J.L. Ethics & Pub. Pol'y 309, 311 (2005); The Battle of the 21^st Century – Democracy fighting Terror (Forum Iyun, Dan Meridor, Chairman, Haim Fass (ed.), , The Israel Democracy Institute, 5767-2006). The matter at bar should be considered within the context of the war on terrorism, which was recently referred to by the Pope as a “Piecemeal World War III” (September 2014). It seems that the cases depicted in the aforesaid individual petitions speak for themselves. Thus, the humanitarian provisions of the Hague Convention (IV), which were assumed by Israel despite the fact that it did not recognize the application of the Convention from a legal perspective (H. Adler, Laws of Occupation, R. Sabel, (ed.), International Law 590-591 (2010) (Hebrew); Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government – The Initial Stage, M. Shamgar (ed.), Military Government in the Territories Administered by Israel 1967-1980 – The Legal Aspects, Volume I, 32 (1982) (Hebrew)), are to be construed in a manner that will preserve their spirit and realize their underlying purposes, while concurrently permitting the State of Israel to protect the security of its residents in the most basic sense of the word. As I have had occasion to state in the past:

                        The relationship between human rights issues and the security needs and challenges will remain on the agendas of Israeli society and the Israeli courts for years to come… The inherent tension between security and human rights issues will, therefore, persist. The Court will seek a balance between security and rights such that security is neither falsely used nor abandoned (E. Rubinstein, On Basic Law: Human Dignity and Liberty and the Security Establishment, 21 Iyunei Mishpat 21, 22 (5758) (Hebrew); see also, E. Rubinstein On Security and Human Rights at Times of Fighting Terrorism, 16 IDF Military Law Review, 765, 766-771 (5762-5763) (Hebrew), and E. Rubinstein, Paths of Governance and Law, 15-40 (5763-2003) (Hebrew); HCJ 1265/11 Public Committee Against Torture in Israel v. Attorney General, paragraphs 17-19 (2012)).

23.       Further, the Petitioners’ claim that any demolition whatsoever, no matter the size and independent of the specific circumstances, necessarily constitutes collective punishment that is prohibited, as aforesaid, under Section 33 of the Fourth Geneva Convention, cannot be accepted (see on this matter – E. Gross, The Struggle of Democracy against Terrorism - The Legal and Moral Aspects, 224 (5764-2004) (Hebrew) (hereinafter: Gross)). I will refrain from bringing examples of the brutal use of house demolition made by “civilized” nations, collectively and not individually, in the distant and near past; see examples in Dan Simon, The Demolition of Homes in the Israeli Occupied Territories, 19 Y.J.I.L 1, 8 (1994). This also holds true for the prohibition on house demolition appearing, as aforesaid, in Article 53 of the Fourth Geneva Convention. That prohibition carves out certain cases, namely, it is not precluded under the Article where the action is necessary on military grounds. As stated by Gross in this regard, “military needs are to be understood at times of combat or armed activity. In that sense, systematic acts of terror that form part of a strategy or armed struggle meet such definition… demolition of a house to the end that it will not be used again for terror purposes… should be deemed a ‘military need’” (Gross, 227-228). The question is, as aforesaid, one of proportionality, and we already clarified that the disproportionate use of said authority by the military commander, which amounts to collective punishment that is prohibited under international law, is precluded (the Daghlas case, p. 44, paragraph 23, and see also see, the Awawdeh case, paragraph 16 and the references there).

24.       Moreover, as this Court has held, “The law of belligerent occupation… imposes conditions on the use of this authority [to maintain order and public life – E.R.]. This authority must be properly balanced against the rights, needs, and interests of the local population” HCJ 2056/04 Beit Sourik Village Council v. Government of Israel, IsrSC 58(5) 807, para. 34 at p. 833, per President Barak (2004) [http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.pdf] (the Beit Sourik case); and see also HCJ 10356/02 Haas v. IDF Commander in the West Bank, IsrSC 58(3) 443, 455-456 (2004) [http://versa.cardozo.yu.edu/opinions/hass-v-idf-commander-west-bank] (the Haas case); HCJ 7957/04 Mara’abe v. Prime Minister of Israel, IsrSC 60(2) 477, 506-507 (2005) [http://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-i... (the Mara’abe case); and Y. Dinstein, Legislative Authority in the Occupied Territories,” 2 Iyunei Mishpat 505, 507 (5732-5733) (Hebrew)). In addition, as stated above, the authority of the GOC Home Front Command and the military commander in the Judea and Samaria Area – and in the context of reasonableness, as distinct of the formal authority, every effort should be exerted so that there be no difference between Israel and the Judea and Samaria Area, even if the commander in the Judea and Samaria Area is bound by a different set of laws – should be interpreted according to the principle of proportionality, which applies by virtue of both international and Israeli law, and according to the criteria addressed above (the Beit Sourik case, pp. 840-841; the Haas case, pp. 460-461). As we know, one of the subtests in examining proportionality is that the means employed by the governmental authority rationally leads to the realization of the purpose of the legislation or action (the “rational connection test”). An additional subtest provides that if the means selected by the government disproportionately infringes the individual right relative to the benefit derived therefrom, it is deemed invalid (the “proportionality test stricto sensu”) (HCJ 5016/96 Horev v. Minister of Transportation, IsrSC 51(4) 1, 53-54 (1997) [http://versa.cardozo.yu.edu/opinions/horev-v-minister-transportation]; the Mara’abe case, p. 507; A. Barak, Principled Constitutional Balancing and Proportionality: The Theoretical Aspect, Studies of the Jurisprudence of Aharon Barak, 39, 41-42 (5769) (Hebrew)). In the case at bar, house demolition under Regulation 119 may meet the proportionality test if an examination reveals that, in general, it is indeed effective and fulfils the purpose of deterrence, and moreover, that the damage suffered due to the house demolition does not disproportionately violate the right of the injured parties to their property relative to the effectiveness of deterrence. As noted, proportionality refers, in our opinion, also to the question of whether the means was exercised collectively – such as, God forbid, the demolition of an entire neighborhood, which is inconceivable in the context of Regulation 119 – relative to the demolition of the home of a proven terrorist, where the injury, which must not be taken lightly, is caused to the property of the inhabitants of house, but not to the property of others nor to human life. This holds true, as aforesaid, whether the authority is exercised within the State of Israel or the Administered Territories.

25.       As for the claim of discriminatory enforcement, Justice Danziger ruled in the Qawasmeh case that “the burden to present an adequate factual basis which can refute the presumption of administrative validity, lies with the party who argues that discriminatory or ‘selective’ enforcement is implemented. Even if the arguing party surmounted this hurdle, the authority can still show that the ostensibly selective enforcement is, in fact, based on pertinent considerations”. Against this backdrop, and as noted by Justice I. Zamir in HCJ 6396/96 Zakin v. Mayor of Beer Sheva, IsrSC 53(3) 289 (1999), “the burden to prove selective enforcement is particularly heavy” (ibid, paragraph 30; and see also M. Tamir, Selective Enforcement 397-399 (5767)). This holds true in the case at bar verbatim, and where the Petitioners have failed to meet that burden, their claim of discriminatory enforcement cannot be accepted.

26.       The Petitioners referred to Jewish law, as presented above. Indeed, in the Ghanimat case, Justice Cheshin quoted (p. 654-655) the words of the prophet Ezekiel (18:20), “the soul that sins, it shall perish. The son shall not bear the inequity of the father, neither shall the father bear the iniquity of the son; the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him”; and further quoted the principle (II Kings 14:6) “The fathers shall not be put to death for the children, nor the children be put to death for the fathers; but every man shall be put to death for his own sin”. The Petitioners also refer to the story of the “Idolatrous City” (Deuteronomy 13:16-17), which contemplates the city’s destruction due to the worship of other gods, and the narrow interpretation given by the Sages (Babylonian Talmud, Sanhedrin 111a and 113a). However, we should bear in mind and stress: in substantial opposition to everything referenced by the Petitioners and by us herein, we are not concerned with killing, and we should make it absolutely clear that were killing being discussed, the act would be patently illegal. Our case involves the demolition or sealing of a house, which does indeed entail a financial loss for its residents, but cannot be compared to all of the aforesaid biblical examples, or to the actions taken by certain nations in our world. Thus, indeed, the question at bar is a difficult one, but it is far from the intensity discussed by the Torah and Prophets. (For related dilemmas, see also Rabbi Shaul Yisraeli, Acts of Retribution in Halacha, 3 Crossroads of Torah and State, 253 (5751-1991), in the chapter entitled Incidental Injury to Innocent People Incidental to Eradicating Gangs of Assassins” (p. 271) (Hebrew); and further see Izhak Englard, Law and Ethics in Jewish Tradition, 28 Dinei Yisrael 1 (5771); on the difficult dilemmas, see in particular pp. 54-60. The author quotes (at pp. 58-59) Rabbi Shlomo Zalman Pines (Russia-Switzerland, 20th century, regarding whom see: Rabbi Yechiel Yaacov Weinberg, Lifrakim (5763-2003), at p. 551, and especially pp. 559ff), Biblical and Talmudic Morality 191 (5737) (Hebrew), as follows: “But sometimes the decision among virtues rests with a man, and depends on the judgment of his mind and conscience.  A moral man who seeks his path stands at a crossroads of the paths of virtues. He hesitates, searches, explores and wonders which is the righteous path to be chosen? There are arguments supporting both sides, and the decision is difficult and fraught. Of such a man, a midrash (Baylonian Talmud, Mo’ed Katan 5a) expounds on the verse in Psalms [50:23]  ‘And to he who sets [ve-sam] a path I shall show the salvation of God’ as follows: ‘Read it not ve-sam [“sets”] but ve-sham [“appraises”], in other words: a person who appraises his paths and evaluates and assesses them in his mind and in the depths of his conscience, he shall be promised the salvation of God that his paths will be righteous and he will not stray from the path of virtue.” Rabbi Wienberg stresses the sanctity of life present in the teachings of Rabbi Pines – “human life is sacred – this is a great principle of Judaism. The value of life is greater than all other elements” (p. 561). Such words are applicable in the case at bar, together with the statement of Rabbi Aharon Lichtenstein (The War Ethics of Abraham, Har Ezion Yeshiva website, Lech-Lecha), that “we must continue to walk on the same path outlined by Abraham – to be sensitive to morality and justice, also at times of war and combat that are just and true on their own merits”.

27.       And after all of the foregoing, and looking to the future, as extensive as the discretion of the military commander may be, as we have explained above, I believe that the principle of proportionality does not allow us to continue to assume forever that choosing the drastic option of house demolition, or even of house sealing, achieves the desired purpose of deterrence, unless all of the data that properly confirms that hypothesis is presented to us for our review. We accept the premise that it is hard to assess this matter, and this Court has frequently addressed this problem (HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 655 (1997); the Awawdeh case, paragraph 24; the Qawasmeh case, paragraph 25). However, as aforesaid, I believe that using means that have considerable consequences on a person’s property justifies an ongoing review of the question of whether or not it bears fruit, especially in view of the fact that claims have been raised in this regard even among IDF officials, and see, for example, the presentation of the Major General Shani Committee, which, on the one hand, presents a consensus among intelligence agencies regarding the benefits thereof, and on the other hand states, under the title “Major Insights” that “within the context of deterrence, the measure of demolition is ‘eroded’” (slide no. 20). Thus, I believe that State authorities must examine the measure and its utility from time to time,  including conducting follow-up research on the matter, and insofar as possible, should, as may be necessary in the future, present this Court with the data demonstrating the effectiveness of house demolition as a means of deterrence that justifies the infliction of damage to parties who are not suspected nor accused (in this regard see also: Y. Tuval, House Demolition: A Legitimate Means for Fighting Terror or Collective Punishment? in A. Gil, Y. Tuval and I. Levy (supervised by M. Kremnitzer and Y. Shani), Exceptional Measures in the Struggle against Terrorism: Administrative Detention, House Demolitions, Deportation and “Assigned Residence” 189 (IDI, 5771) (Hebrew); A. Cohen and T. Mimran, Cost without Benefit in House Demolition Policy – Following HCJ 4597/14 Muhamed Hassan Halil Awawdeh v. West Bank Military Commander, 31 Mivzakei He’arot Pesika 5, 21-24 (website of the College of Management Academic Studies, September 2014) (Hebrew)), and conversely, see the sources collected by my colleague Justice Noam Sohlberg in his opinion, some of which refer to situations encountered by other nations faced with the terrorist chaos that has befallen the world. In my opinion, the requested effort would be appropriate in order to meet the basic requirements of  Basic Law: Human Dignity and Liberty, the importance of which in the Israeli democratic system requires no elaboration. We are not setting hard-and-fast rules as to the nature of the research and the data required. That will be clarified, to the extent necessary, at the appropriate time. At present, of course, the engineering issue should be thoroughly examined in respect of each specific demolition or sealing, in order to ensure that the goal is achieved within its boundaries, and without deviation.

28.       Subject to Paragraph 27, we cannot grant the Petition.

 

Justice Noam Sohlberg:

1. I concur in the judgement of my colleague Justice E. Rubinstein – little holding much. I shall add several incidental comments.
2.  The Petitioners have challenged Regulation 119. Indeed, the power of the military commander thereunder is tremendous – to confiscate and demolish. We are concerned with draconian authority. The Petitioners attacked it as such, and against that backdrop, the harsh criticism is understandable and reasonable. The criticism further intensifies through the presentation of the extreme sanction as punitive, and as amounting to collective punishment. Indeed, the injury to a family member – who has not sinned nor transgressed – when he loses his home and shelter, contrary to first principles, is burdensome.
3. The state of affairs is sufficiently bleak and onerous as described by my colleague Justice E. Rubinstein, but the manner in which it was presented in the Petition is too extreme. I shall explain. The Regulation, as written, does not reflect the actual situation on the ground. First, in a number of judgements, this Court has outlined criteria for the implementation of the Regulation, and has restricted and reduced the scope of its application. Second, in practice, the military command currently exercises moderation, restraint and control in implementing the authority. The Petitioners claim that “house demolitions under Regulation 119 have accompanied the Israeli occupation since its very beginning” (Section 22 of the Petition), and according to them, “the authority has caused hundreds of families and thousands of people to lose their homes, due to the deeds of the individual” (section 221 of the Petition). However, according to the Respondents, in the last decade, since 2005, the military commander has exercised the contemplated authority only several times: in 2008-2009, following a wave of terror in Jerusalem, the authority was exercised twice against residential buildings in East Jerusalem. A third use of Regulation 119 at that time was ultimately not realized. In the summer of 2014, the authority under Regulation 119 was exercised against four buildings (the home of the assassin of Police Commander Baruch Mizrahi OBM, and the homes of the three cell-members who abducted and murdered the three teenagers Gil-Ad Shaar, Naftali Fraenkel and Eyal Yifrach OBM). A considerable deterioration in the security situation required this. Now we are discussing 5 orders against buildings inhabited by terrorists residing in East Jerusalem, who were the instigators of horrendous terror attacks in the context of the recent wave of terror. An additional order has been implemented. Thus, a small number of cases is concerned, and we are not dealing with “collective punishment” as shall be further elaborated below, although, of course, every home holds the story and strife of its dwellers.
4. Hence, the focus herein is not the formal envelope of Regulation 119, nor its broad language, or factual data from the distant past, but the narrow interpretation of the Regulation and its actual implementation in a small number of cases, in the course of a serious wave of terror. Furthermore, the following should be recalled and noted to disabuse those who may wonder or be confused: we are concerned with deterrence, and not punishment. The classification of the demolition of a family home as “punishment” or “deterrence” indeed makes no difference when it comes to the outcome suffered by the members of that family. The outcome is the anguish involved in losing one’s home and shelter. However, we have been convinced that when the criteria set forth in law and case law are met, it is an inevitable necessity. The mere injury to the members of the terrorist’s family does not render a house demolition illegal, even according to the rules of international law, as demonstrated by my colleague. Indeed, in criminal punishment, as distinct from deterrence under Regulation 119, the focus is on the person convicted of the crime, and not his family members. However, as I stated in the Qawasmeh case referenced above – “even in criminal proceedings the purpose of which is punitive… innocent family members are injured. The imprisonment of a person for a criminal offense committed by him, necessarily injures his spouse, children and other relatives, both in terms of their physical needs and emotionally. There is no need to elaborate on the deprivations arising from a person's incarceration, which are suffered by his family members”. The language of the Regulation explicitly testifies to the deterrent purpose underlying the confiscation and demolition or sealing of a residential home. This inherently involves an injury to innocent parties. Otherwise, how can deterrence from suicide attacks and the like be achieved? These are the bitter fruit of murderous terrorism, and we are obligated to promote deterrence against horrendous acts of the kind described in the individual petitions, even at the cost of injuring the terrorists’ families. And note, the matter involves property damage and not bodily injury. While house demolition is placed on one side of the scales, the other weighs the saving of lives.
5. The Petitioners deny the deterrent benefit of Regulation 119. However, such claim was repeatedly dismissed in case law: “…A study that can conclusively show just how many terrorist attacks have been prevented and how many lives have been saved as a result of house sealing and demolitions has never been nor could be conducted. However, as far as I am concerned, it is sufficient that we cannot rule out the view that this measure has some deterrent effect to prevent me from intervening in the discretion of the Military Commander” (per Justice E, Goldberg in HCJ 2006/97 Ghanimat v. OC Central Command, (March 30, 1997); see also HCJ 6288/03 Sa’ada v. GOC Home Front Command (November 27, 2003)).
6. Researchers who have recently addressed the issue have described the methodological difficulties encountered in measuring the influence of deterrent steps against terror. Wilner notes (in reliance on Richard Ned Lebow and Janice Gross Stein, Deterrence: The Elusive Dependent Variable, 42(3) World Politics 336 (1990)) that successes of deterrent acts leave few, if any, “behavioral tracks”. It is hard to prove that the deterring party had influence on an event that did not occur (Alex S. Wilner, Deterring the Undeterrable: Coercion, Denial, and Delegitimization in Counterterrorism, 34(1) Journal of Strategic Studies 3 (2011)). Nevertheless, the existing empirical research, specific indications from past experience, together with new research in the field of the psychology of terrorism and the theory of deterrence, cumulatively and satisfactorily support the deterrent potential of the demolition of terrorists’ homes.
7. Benmelech, Berrebi and Klor empirically examined whether house demolition is an effective tactic in counterterrorism. Data about house demolitions were crosschecked with data about suicide attacks during the Second Intifada. It was found that the demolition of houses of suicide bombers and of other parties involved in terrorist attacks led to an immediate and substantial decrease in the number of suicide attacks by terrorists residing in the area of the demolition. However, it was found that the deterrent effect was short lived, the influence fading within a month, and that it was limited to the geographic area of the demolition. The researchers’ hypothesis is that, in addition to house demolition, the security forces implement additional counterterrorism measures, and it is possible that the latter may be responsible for the waning of the deterrence. Their conclusion is unambiguous:

The results indicate that, when targeted correctly, counterterrorism measures such as house demolitions provide the desired deterrent effect… (Efraim Benmelech, Claude Berrebi and Esteban Klor, Counter-Suicide-Terrorism: Evidence from House Demolitions, NBER Working Paper Series, available at: http://www.nber.org/papers/w16493 (2010)).

8. The empirical findings are supported by data obtained from people in the field regarding the states of mind, or efforts of relatives to implore family members to refrain from involvement in terrorism that will endanger their homes (see for example: Doron Almog, Cumulative Deterrence and the War on Terrorism, 34(4) Parameters 5 (2004/5). Such pin-pointed data reveal that the deterrence permeates into the awareness of the target population. Similar statements were made by the Respondents’ counsel during the Petition’s hearing, in response to my question.
9. Current insights in the field of the terror-deterrence theory should also be considered. Rascoff proposes a multi-layered approach to counterterrorism (layering), from two perspectives – an interaction among various measures and the accumulation thereof. In his words:

… there is the possibility of synchronic layering, in which various instruments of power operating in concert may "exceed an adversary's threshold for deterrence.”…Synchronic layering argues for measuring deterrence's effectiveness in the context of a complex system… Second, diachronic layering (sometimes referred to as "cumulative deterrence") argues that the overall benefit conferred by a sustained deterrence posture may exceed the sum of interventions taken over time (Samuel J. Rascoff,., Counterterrorism and New Deterrence, 89 N.Y.U. L. Rev. 830, 840 (2014)).

            It emerges from the foregoing, that, in the case at bar, an attempt to isolate and assess the deterrence achieved through a certain measure – house demolition – on its merits, could lead to an erroneous conclusion. It is possible that taken cumulatively, together with additional coordinated steps, house demolition will make that certain contribution that may sometimes be crucial to the manner by which terrorist organizations conduct themselves, even if on its own it is insufficient.

10. Research in the field of the psychology of terrorism thoroughly analyzes statements made by terrorists, alongside the mode of conduct undertaken by terrorist organizations. It was found, that terrorist organizations, including those characterized by religious extremism, respond to rational, utilitarian reasoning. Thus, they can be deterred through measures that influence the cost-benefit considerations of the terrorist action. The centrality of family in the eyes of those involved in terrorism clearly emerges from such studies, supporting the deterrent value inhering in the demolition of terrorists’ homes. This is Wilner’s take on the matter:

… post- 9/11 deterrence skepticism is misplaced. While it is true that deterring terrorism will be more difficult to do than deterring the Soviet Union, targeting what terrorists value, desire, and believe will influence the type and ferocity of the violence they organize (ibid, at p. 31, emphasis added, and also see pp. 7, 13-14; For additional material on the “rational” conduct of terrorists see: Jocelyn J. Belanger, Keren Sharvit, Julie Caouette and Michelle Dugas, The Psychology of Martyrdom: Making the Ultimate Sacrifice in the Name of a Cause, 58(7) Journal of Conflict Resolution 494, 496 (2014)).

11. Perry and Hasisi show in greater detail that despite propaganda-directed declarations, which seek to present suicide attacks as deriving from altruistic motivations, they are mainly the result of a “rational” choice. That choice is founded, on the one hand, on the expected costs, and on the other hand on the expectation of reward (personal, religious and social). The terrorist organizations put an emphasis on promises pertaining to the expected improvement in the situation of the terrorist’s family members after his suicide:

…The martyr's family's status upgrade…both socially and monetarily. …Financial reward can be given to the family by rebuilding their homes. …or in direct sums of money… at least 60… martyrs… whose families, in exchange for the martyr's death, were given new homes adorned with the martyr's picture and name…. The recruiting terror groups embellish this incentive, reassuring the suicide bombers that “their families will be better taken care of in their absence”. …It is often this familial assistance alone that drives the suicide bomber to commit an attack… (Simon Perry and Badi Hasisi, Rational Choice Rewards and the Jihadist Suicide Bomber, 27 Terrorism and Political Violence 53, 55, 61, 65-66 (2015)).

12. Suicide bombers have stressed, in their recorded farewells from this world, the benefits that their families will be awarded, as a certain compensation for their departure, and even described the extent to which the thought of the good that will come to their families was on their minds virtually up to the act itself (ibid). In putting special emphasis on the house of the terrorist’s family, the terrorist organizations themselves mark the “soft underbelly” in which deterrence may be effective.
13. From the aforesaid it emerges that the demolition of terrorists’ homes will add the knowledge that his relatives will pay the price for his actions to the cost-benefit calculation made by a potential terrorist. This aspect of deterrence was referred to by Justice S. Netanyahu in HCJ 4772/91 Hizran et al. v. Commander of IDF Forces in the Judea and Samaria Area, IsrSC 46(2) 150, 155, as follows: “… I do not ignore the fact that the demolition of entire buildings will injure not only the Petitioners themselves but also their family members. But this is the result of the necessity to deter the many, such that they will see and know that their despicable acts not only harm individuals, risk public safety and inflict severe punishment upon themselves, but that they also cause grief to their families…”.
14. However, deterrence is not only intended to directly influence the state of mind of the terrorist, but also to dissuade him from his actions through the intervention of his family. Familial influence is a well-known factor in the literature (Emanuel Gross, The Struggle of Democracy against Suicide Terrorism – Is the Free World Equipped with Moral and Legal Answers for this Struggle? Dalia Dorner Book, 219, 246 (2009) (Hebrew)): “In the traditional Palestinian society, family takes a central place in the life of the suicide bomber, making a decisive contribution to the shaping of his personality and the extent of his willingness to sacrifice his own life in the name of his religion or for his people…”. Gross provides examples and points out that family support, and its public displays, serve the terrorist organizations “in widening the circle of the organization’s supporters within Palestinian society, thus increasing its ability to recruit additional suicide bombers in the future” (and see: Emily Camins, War against Terrorism: Fighting the Military Battle, Losing the Psychological War, 15 Current Issues Crim. Just. 95, 101 (2003-2004)). The familial factor as a terrorism enhancer needs to be defused, and the family must be given incentives to act to minimize terrorism. Fear of the demolition of its home should encourage the family of the potential terrorist to influence him in the desired direction, and dissuade it from providing him a tight circle of support, thus discouraging him from joining or carrying out terrorist attacks. Thus, deterrence contributes, even if to a small extent. Such a small extent, in the circumstances of time and place, may sometimes be the decisive factor, for better or worse.
15. The Petitioners’ claim of discrimination between Palestinians and Jews in the implementation of Regulation 119 is unfounded. The reason that Regulation 119 has not been used against Jews stems from the fact that there is no need for such environmental deterrence within the Jewish sector. We do not deny that there are assaults initiated by Jews against Arabs. Indeed, criminal law should be enforced to its fullest extent, and appropriate punishment should be inflicted. Tragically, we have even reached the point of the heinous murder of Mohamed Abu Khdeir. But the differences exceed the similarities. The gap is huge in the nature and quantity of attacks, and primarily, for the purpose of the case at bar, in the manner by which it is treated by society: a firm, unambiguous, wall-to-wall denunciation by the Jewish sector, which is unmet by a similar stride on the other side, and there is no need to further elaborate on the matter.
16. The Plaintiffs have dedicated a chapter in their Petition to the subject of  “The Prohibition on Collective Punishment in Jewish Law”, and appropriately so. This is a difficult, fundamental matter of values and morality, and it should be discussed in light of the values of the State of Israel as a Jewish and democratic state. Initially, the Petitioners quoted the words of Abraham, who stood firmly before God and categorically argued against the collective obliteration of Sodom and Gomorrah, including “all those living in the cities, and also the vegetation in the land” (Genesis 19:25):

Then Abraham approached and said will you sweep away the righteous with the wicked? ... Far be it from you to do such a thing to kill the righteous with the wicked, treating the righteous and the wicked alike, far be it from you! Will not the judge of all the earth do right? (ibid. 18:23-25).

Abraham began his negotiation with “the judge of all the earth” with fifty righteous people, and ended with ten. If such number of men be found, God promised Abraham not to destroy the city: “For the sake of ten, I will not destroy it” (ibid. 18:32). Abraham did not ask for less than ten. He may have reasoned that this is the watershed – a minyan of righteous people – and not less; a matter of proportionality (see the interpretations of Rashi and Or Hachayim ad loc. (verses 32-33)).

17. However, this collective punishment embodied in the destruction of Sodom is to be viewed as distinct of its pecuniary outcomes. As recalled, Lot was spared such punishment, but “left with his hands over his head and did not rescue any of his assets” (Jerusalem Talmud, Sanhedrin 10, 8).
18. The Petitioners also referred to the story of Korach: “O God, the God who gives breath to all living things, will you be angry with the entire assembly when only one man sins?” (Numbers 16:22) etc. In this context it is appropriate that we repeat the words of Justice M. Cheshin, which were also referenced by the Petitioners, regarding the basic principle in Jewish Law, whereby “every man must pay for his own crimes”:

On many occasions, I have pointed out the difficulties inherent in exercising the powers granted by Regulation 119 of the Defence Regulations… I rooted myself in a basic legal principle, and from it I will not be swayed. This is the basic principle that our people have always recognized and reiterated: every man must pay for his own crimes. In the words of the Prophet: “The soul that sins, it shall perish. The son shall not bear the iniquity of the father, neither the father bear the iniquity of the son, the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him (Ezekiel 18:20). One should punish only after caution is provided, and one should strike the sinner alone. This is the Jewish way as prescribed in the Law of Moses: “The fathers shall not be put to death for the children, nor the children be put to death for the fathers; but every man shall be put to death for his own sin (II Kings 14:6) [HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 654-655 (1997); and also see: HCJ 2722/92 Alamarin v. Commander of IDF Forces in the Gaza Strip, IsrSC 46(3) 693 (1992)].

19. These are fundamental maxims, the law of nature – a value that is both democratic and Jewish. Rabbi Samson Raphael Hirsch accurately interpreted this principle of natural justice as follows:

Our scripture is not aimed at preventing the legal abomination whereby a court will punish sons for the crimes of their fathers… inasmuch as it is inconceivable that any legal authority would do so. Rather, Scripture teaches us that from a political and social perspective, a person is not to be punished for the sins of his relative (Hirsch Commentary on the Torah, Deuteronomy 24:16).

20. Throughout the generations, the Sages have perceived this principle in a persistent, consistent manner, whereby in practice, a man who did not participate in the wrongdoing is not to be punished (see the survey by Rabbi Meir Batiste, Collective Punishment, 12 Tehumin 229, 230-231 (5751) (Hebrew) (hereinafter: Batiste); Aviad Hacohen, Shall One Man Sin, and Will You be Wroth with all the Congregation? Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Vayishlach, 5761) (Hebrew) (hereinafter: Hacohen)).
21. Nevertheless, the voice of ethics and justice notwithstanding, it seems that the rule prescribing that “every man must pay for his own crimes” is not the be-all and end-all, it does not stand alone, contrary to the approach of the Petitioners who assert its exclusive application. As aforesaid, collective corporal punishment is to be viewed as distinct from property damage. The approach of Jewish law is not one-dimensional, but rather considers additional rights and principles, which are important as well, by way of balancing and completion.
22. Imposing punishment on the family members of a person who did wrong is rare, but can be found in Jewish law in various contexts. Thus, for example, Rabbi Paltoi Gaon ruled that a child may be taken out of school as a sanction against his father, in order to compel the father to fulfill a Court order, and for the purpose of protecting the principle of the rule of law and its enforcement (Teshuvot HaGeonim, Shaarei Tzedek 4, 5, Title 14; Yuval Sinai, Implementation of Jewish Law in Israeli Courts, 444 (2009); Rabbi Abraham Issac Kook justified collective sanctions against a community that decided to appoint one of its members to public office despite the fact that he had desecrated Yom Kippur, in order to prevent public desecration (Daat Kohen, 193, Batiste, 234-235)). The Sages have allowed the imposition of sanctions on members of the family of a recalcitrant husband in order to release a woman who is denied a divorce. These sanctions were imposed on the grounds that they serve as punishment for “aiding and abetting a transgression”, as well as being measures of deterrence. The underlying premise is that the recalcitrant husband does not act in a void, but rather  receives the psychological, moral, financial and practical support of his close family. Such support, after an order has already been issued by the Rabbinical Court instructing the recalcitrant husband to divorce his wife, actually aides and abets the commission of an offence, thus justifying the imposition of sanctions against the family members, as well. It is obvious, however, that such sanctions require clear proof that assistance and support were provided by the family, and in any event must be enforced proportionately (Aviad Hacohen, If You Will It, She shall not be an Agunah: Imposing Sanctions on a “Recalcitrant Husband” and his Family, Gilyonot Parashat Hashavua (Ministry of Justice) (Nitzavim-Vayelech, 5769) (Hebrew)).
23. Such an approach is also dictated by a true view of reality, since a person cannot be viewed as detached from his environment and family. The responsibility of the environment and family for a person’s actions – to a certain extent – is repeatedly mentioned in various contexts in Jewish law. Thus, for example, a midrashic interpretation of the justification for punishing the family of a person “who sacrifices any of his children to Molech” (Leviticus, 20:1): “I myself will set my face against him and his family and will cut them off from their people together with all who follow him in prostituting themselves to Molech” (ibid., 5) states:

Rabbi Shimon said: What has the family sinned? This serves to teach that when a family member is an illegal customs collector, all of its members are deemed illegal customs collectors; when a family member is a thief, all of its member are deemed thieves – since they cover for him (Torat Kohanim, ibid.).

24. It is should be noted, that regarding such matters, the power to punish is vested in the Heavenly Court and not an earthly court (Hacohen, Batiste, 234-235). Nevertheless, Rabbi Naftali Zvi Yehuda Berlin explains that the closeness of a person to his family may create an identification, which is initially conceptual, and later becomes practical as well, and thus, from a forward-looking perspective, deterrence is sometimes required for the sake of prevention:

They could no longer find it in their hearts to commit this abomination. Thus, they try to save this man, who endangered himself at first, and slowly they and others will also reach this abomination. And if they were willfully blind therefor, his family will also perish” (Haamek Davar, Leviticus 20 (Hebrew)).

25. An additional expression of the responsibility of the family and community is brought in the Talmud:

Anyone who is able to rebuke his household, but does not – he will be liable for his household; his  townsmen – he will liable for his townsmen; the entire world – he will be liable for the entire world” (Babylonian Talmud, Shabbat 54b).

As we can see, the sinner does not stand alone. His friends and family cannot wash their hands clean of him. Maimonides ruled that: “a person who sees that his friend has sinned or is following an improper path is required to correct his behavior and inform him that he is sinning by his evil deeds… and whoever is able to rebuke and fails to do so is considered responsible for such sins, for he had the opportunity to rebuke in regard to them” (, Hilchot De’ot 6:7).

26. An additional matter related to the responsibility of the community for the deeds of an offender can be found in the discussion of the matter of “house leprosy”. According to the Torah, when leprosy spreads in the walls of a house and is not cured, the entire house is to be demolished, even if all of the inhabitants will suffer, as well as the neighbors whose house wall is incidentally demolished. Such neighbor will also be forced to rebuild his damaged home:

From here they said, woe to the evil person, woe to his neighbor. Both remove, both scrape and both bring the stones (Mishnah, Nega’im, 12:6).

This matter may be understood “technically”, since one cannot tear down a wall from one side only. However, the Sages viewed the matter as justification for collective punishment of the culprit and his surroundings, which maintain a mutual and reciprocal relationship among them (see Babylonian Talmud, Sukkah 56b; Batiste 236; Michal Tikochinsky, Woe to the Evil Person, Woe to his Neighbor ,http://www.bmj.org.il/show_article/984 (Hebrew); Yehuda Shaviv, House Leprosy as distinct of other Leprosies, 15 Megadim  (2003) (Hebrew)).

27. We should note that these examples should not be understood as consistently advocating punishment of the community for the misdeeds of one deviant member. On the contrary, the rule still holds: “The soul that sins, it shall perish. The son shall not bear the iniquity of the father, neither the father bear the iniquity of the son, the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him” (Ezekiel 18:20). However, there are exceptions in which uprooting evil requires a punitive-deterrent response that also inflicts harm upon the surrounding environment: “The cabbage is damaged with the thorn” (Babylonian Talmud, Bava Kama 92a). Rashi explains ad loc: “When a thorn grows near the cabbage, uprooting the thorn sometimes results in the cabbage being uprooted with it and sustaining harm due to it – in other words, the neighbors of an evil person suffer with him”.
28. We should reiterate that a pecuniary matter is not equivalent to collective corporal punishment. Maimonides ruled (Mishneh Torah, Hilkhot Melachim Umilchamot 5:3) that a king “may break through to make a road and no one can take issue with him”. This is all the more applicable when rescue from danger is concerned, and a fortiori in the case of serial, murderous terrorism.
29. Unfortunately, we do not live in quietness and confidence. Peace is our heart’s desire, but it has yet to come. The IDF, police and other security forces are compelled to confront heinous, murderous terrorism that does not sanctify life, but rather worships death. The atrocities of terrorists have radicalized to the extent that they are willing to die the “death of martyrs”, as long as they drag Jews with them into the abyss. The law that applies in times of war is not the same as law that applies in times of peace (Batiste 237-238; Yaron Unger, “Fear Not Abram” – On the  Ethics of Warfare in Israel, Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Lech Lecha, 5766) (Hebrew) (hereinafter: Unger)). This is not the proper venue to discuss the matter of injury to civilians in the course of such complex combat (see the discussion and references in the articles of Rabbi Shaul Yisraeli, Acts of Retribution in Light of the Halacha, 3 Crossroads of Torah and State 267-273 (1991) (Hebrew); Rabbi Haim David HaLevi, The Principle of “Kill or be Killed” in Public Life, 1 Tehumin 1 343 (5740 (Hebrew); Abraham Israel Sharir, Military Ethics according to the Halacha, 21 Tehumin  426, 431-434 (5765) (Hebrew); Unger, 2-3)). In such a context, we must caution ourselves not to draw hasty conclusions from the Halacha, inter alia due to “thousands of years of exile from land, country and state” (Guttel 18-19), resulting in “a dilution of Halacha sources” (ibid.), and due to the difference between the reality emerging from the Talmudic sources and the present reality , as well as the inherent danger of drawing anachronistic analogies (Aviad Hacohen, Law and Ethics at Times of War, Parshyiot Umishpatim – Jewish Law in the Weekly Torah Portion, 457-462 (5771) (Hebrew) (hereinafter: Parshyiot Umishpatim). Moreover, there have also been important developments in regard to what is permitted and prohibited in wars among nations. Such rules of international law have been recognized in Jewish law, under the principle of “the law of the land is the law” (Guttel 38-40, and the reference there; Unger 4).
30. As aforesaid, with all due care and caution, it is clear that there are special laws intended for times of danger and war, and their application does not entirely preclude collateral damage. Nevertheless, times of war are a moral challenge. The weapons used by combat soldiers on the battle field, and which are necessary for the success of their missions, are tools of death and destruction that would normally be seen as contradicting moral values and human rights. It is not without reason that the Torah warned warriors participating in a battle as follows: “you shall keep away from everything evil” (Deuteronomy 23:10). Special commandments are intended for times of war, in order to contend with moral and spiritual crises: “Scripture speaks only against the evil inclination” (Rashi’s commentary on Deuteronomy 21:11; Avraham Sherman, Halachic Principles in War Ethics, 9 Tehumin 231, 231-232 (5748) (Hebrew) (hereinafter: Sherman); Aviad Hacohen, “As God is Compassionate and Gracious, You too are Compassionate and Gracious!”: On Cruelty and Compassion in Jewish Tradition, in Yoel Elizur (ed.),“The Blot of a Light Cloud”? Israeli Soldiers, Army, and Society in the Intifada, 325-347 (5772) (Hebrew)). One such commandment relevant to the case at bar is the prohibition on cutting down trees around a city:

When you besiege a city for many days to wage war against it to capture it, you shall not destroy its trees by wielding an ax against them, for you may eat from them, but you shall not cut them down. Is the tree of the field a man, to go into the siege before you? However, you may destroy and cut down a tree that you know is not a food tree, and you shall build bulwarks against the city that makes war with you, until its submission (Deuteronomy 20:19-20).

31. This prohibition on collective, wanton destruction designed to hurt the enemy for no military advantage was applied to anything of value and not only to trees. This is the moral lesson of “do not destroy” (bal tashchit) at times of war, which sets a boundary and prescribes rules for self-restraint, even when permission has been granted to the destroyer to inflict harm (Moshe Drori, “When you besiege a city… you shall not destroy its trees” – the Prohibition of Do Not Destroy, Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Shoftim, 5767) (Hebrew); Sherman 233-234). Jewish law permits the destruction of valuable property at times of war, provided that there is clear awareness of the purpose, and even then – one must act proportionately and carry out such acts to the least destructive extent (Sherman 235 and the references there). Such destruction, in the course of war, solely for an advantage, and performed in a proportionate manner, teaches us a thing or two about the matter of demolition and sealing contemplated in this case: even in war we must not lose sight of human values or our moral compass (Parshiyot Umishpatim, ibid., 457).
32. This difficult and distressing topic could be discussed endlessly, in Jewish law and in general, but this is not the place to discuss it further. The crux of the matter is the basic guiding principle that of which we have been warned: “A governor is cautioned not to punish the sons for the sin of the father” (Novellae Ran, Sanhedrin 27b). At the same time, we must recognize the existence of exceptions – rare, irregular, but sometimes inevitable. These can be applied when the danger is great, when the community carries a certain responsibility, even if it is only passive, or when it covers up for a crime, or when the rule of law is trampled upon, to deter, to distance the innocent from a criminal environment, to promote the social and educational value underlying punishment, and more. In the individual petitions that were dismissed, we were indeed convinced that the governor did not seek to punish the family members for the sin of the terrorist, but to deter, at times of emergency, as a lesson for all to see, and for the purpose of saving lives. This is the governor’s role – an inevitable necessity, even at the price paid by the terrorist’s family – in order to protect the living.
33. On the one hand, we are to remember and preserve morality, human rights and a measure of compassion even in war and quasi-war: “as God is compassionate, you too must be compassionate" (Midrash Sifri, Eikev 49). On the other hand, we must also bear in mind that: “He who is compassionate to the cruel will ultimately be cruel to the compassionate” (Yalkut Shimoni, I Samuel 121). We must deliberate and decide between these extremes. While the demolition of the house of a terrorist and the injury to his family is placed on one end of the scales -- the other weighs the saving of lives. This was done by my colleague Justice E. Rubinstein, and his reasoning is clear and convincing. I concur in his opinion.

 

Justice E. Hayut:

1. I concur with the conclusion reached by my colleague Justice E. Rubinstein whereby this Petition should be denied. The main reason leading me to this conclusion stems from the fact that the principle questions raised by the Petitioners were only recently heard and decided by this Court in the context of individual petitions. The first, on July 1, 2014, regarding the demolition of the home of the man accused of the assassination of Police Commander Baruch Mizrahi OBM (HCJ 4597/15 Awawdeh v. Military Commander of the West Bank Area (July 1, 2014) (the Awawdeh case); and the others on August 11, 2014, regarding the demolition of the homes of the abductors and murderers of the three teenagers Gil-Ad Shaar, Naftali Fraenkel and Eyal Yifrach OBM, and of an additional person who was involved (HCJ 5290/14 Qawasmeh v. Military Commander of the West Bank Area (August 11, 2014) (the Qawasmeh case). Indeed, this Court is not constrained by its own precedents, as prescribed by section 20(b) of Basic Law: The Judiciary, which establishes that: “Case law laid down by the Supreme Court shall bind any court other than the Supreme Court”. However, the words of Justice Silberg in FH 23/60 Balan v. Executors of the Litvinsky Will, IsrSC 15(1) 71, 75, in reference to the previous version of that provision, in section 33(b) of the Courts Law, 5717-1957, are applicable in the case at bar, stressing as follows:

This provision does not render the pages on which the previous judgments of the Supreme Court were written into a “tabula rasa”… The Israeli legislator did not wish to completely release the Supreme Court from the burden of the precedent such that each one of its Justices would act as he pleases… This is not the path that we must take! Should we take this path, over time this judicial institution will turn from a “House of Law” into a ”House of Judges” in which the number of opinions will equal the number of its members.

This important statement should always be borne in mind. In the case at bar, the Petitioners again raise matters of principle concerning house demolition that have already been heard and resolved in the Awawdeh and Qawasmeh cases, such that they are actually seeking to overturn those judgments. I cannot agree to this without the risk of turning this court into a "House of Judges". This is particularly true given the fact that said judgments were issued by five of the Justices of this court only a few months ago. Nevertheless, it should be stated honestly that the issues raised in the Petition are difficult and vexing, and I do not deny that taking the path outlined by case law in this matter is not easy.

2. For years, Israel has contended with the spread of terror and its horrifying eruptions aimed even against innocent civilians. In recent years, the world has been exposed to global terrorism, and this reality compels the law, both locally and internationally, to confront complicated questions as to the legitimate measures that a state may employ in its struggle against terrorism, as it fulfils its obligation to protect itself and its citizens. Such complicated questions have often confronted the Israeli Supreme Court over the years, and it would be sufficient to mention several notable judgments issued in that context: the use of interrogation measures that included the exertion of physical pressure (HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel, IsrSC 53(4) 817 (1999) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...); administrative detention of individuals for the purpose of using them as "bargaining chips" in negotiations (HCJ 7048/97 Does v. Minister of Defense, IsrSC 54(1) 721 (2000) [http://versa.cardozo.yu.edu/opinions/does-v-ministry-defense]); “assigned residence” orders (HCJ 7015/02 Ajuri v. IDF Commander in the West Bank (September 3, 2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank); and the "targeted killing" policy (HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (December 14, 2006) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...). In addition, this court also conducted judicial review of statutes that were enacted for counterterrorism purposes (CrimA. 6659/06 A. v. State of Israel, IsrSC 62(4) 329 (2008) [http://versa.cardozo.yu.edu/opinions/v-state-israel-1]; HCJ 7052/03 Adalah - The Legal Center for Arab Minority Rights in Israel v. Ministry of the Interior, IsrSC 61(2) 202 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... HCJ 466/07 MK Zehava Gal-On Meretz-Yachad v. Attorney General (January 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). However, it seems that in the area of counterterrorism, both international law and domestic Israeli law have yet to catch up with reality, and have yet to establish a comprehensive, detailed code of legal measures that a state may employ in fulfillment of its aforesaid obligation to protect itself and its citizens. Needless to say, this area desperately requires regulation. since the known law by which the nations of the world act is largely adapted to the traditional, familiar model of war between armies, whereas the new, horrific reality created by terrorist organizations and individuals who carry out terror attacks in Israel and around the world, disregards territorial borders and draws no distinction between times of war and times of peace. Thus, any time is the right time to spread destruction, violence and fear, usually without discriminating between soldiers and civilians. In fact, terrorism does not respect any of the rules of the game established by the old world in the laws of war, and this reality also requires that  jurists, and not only the security forces, rethink the subject in order to update these laws and adapt them to the new reality. Currently, in the absence of such an updated legal code, Israeli law must cope, on a case by case basis, with questions related to counterterrorism, while constantly aspiring and striving to maintain the fragile balance between the needs of security and human rights and the values of the State of Israel as a Jewish and democratic state.
3. Under the case law, Regulation 119 of the Defence (Emergency) Regulations, 1945 (hereinafter: Regulation 119) currently forms part of Israel’s positive law, and its validity is maintained by virtue of the Preservation of Laws clause under section 10 of Basic Law: Human Dignity and Liberty, even if it is inconsistent with the provisions of the Basic Law. However, as this Court has often stated in its decisions, and as mentioned by my colleague Justice Rubinstein, in interpreting the power granted an authority under the Regulations, we must draw interpretive inspiration from the Basic Law. This interpretive inspiration informs us that when examining and reviewing the exercise of power granted the authority under Regulation 119, the conditions of the Limitation Clause should guide us, and we must ensure that the act is undertaken for a proper purpose and that it satisfies the proportionality tests (HCJFH 2161/96 Sharif v. GOC Home Front Command, IsrSC 50(4) 485, 488 (1996); the Awawdeh case, paragraphs 16-18; the Qawasmeh case, paragraph 22).
4. In their arguments, the Respondents emphasized that the underlying purpose of the demolition policy of terrorists’ homes is not collective punishment but rather deterrence, and that the said measure was exercised in a limited manner, while examining the engineering consequences involved, and while considering less injurious measures, such as sealing, in appropriate cases. This Court adopted its position as to the purpose of this measure in a number of judgments. In the Sharif case, denying a request for a further hearing concerning the partial demolition of a building that was the residence of a person who had provided  a suicide bomber with an explosive device that was detonated on a bus in Jerusalem, President A. Barak stated as follows: “The purpose that guided the Respondent is a proper one… this is no innovation against the background of the extensive case law of this Court. The purpose is not punitive but rather deterrent” (ibid, p. 488; and also see: the Awawdeh case, paragraph 19). In their article Cost without Benefit in the House Demolition Policy: Following HCJ 4597/14 Muhammad Hassan Khalil Awawdeh v. Military Commander of the West Bank, 31 Hamishpat BaReshet Mivzakei He’arot Psika  5, 21-24 (website of the College of Management Academic Studies, September 2014) Amichai Cohen and Tal Mimran state that the consideration of deterrence as a proper purpose is controversial, and they supported this argument in reliance on the opinion of Justice Arbel in HCJ 7146/12 Serge Adam v. The Knesset (September 16, 2013) [http://versa.cardozo.yu.edu/opinions/adam-v-knesset-summary] in which she noted that the deterrence of immigrants and asylum seekers was a desired social interest, but that the legislation that was reviewed in that case did not display the required sensitivity for human rights required to  meet the proper purpose test, since it fails to treat the individual as an objective rather than a means, which constitutes another violation of his dignity as a human being. I believe that their view raises a certain analytic difficulty, given the fact that the starting point was that deterrence – in that case, of immigrants and asylum seekers, and in our case, of terrorists and their supporters – serves an important, proper social interest. That being the premise, criticism should actually be directed against the measures exercised and the proportionality tests they must satisfy, rather than against the purpose, which is itself proper, unless we are willing to determine categorically that deterrence – any deterrence – is not a proper purpose, a proposition that I would find hard to accept, and certainly not when the protection of national security and the deterrence of potential terrorists from committing terror attacks are concerned.

The Petitioners' counsel argues that even if we accept the position that the underlying purpose of house demolition is deterrence, the outcome is collectively punitive, and therefore, wrongful (on this issue see also: Y. Tuval, House Demolition: A Legitimate Means for Fighting Terror or Collective Punishment? in 189 (The Israel Democracy Institute, 2010) (Hebrew)). It seems to me that it is difficult to classify the demolition of a terrorist's home as collective punishment in the customary sense, even taking into account that his family members who live with him in that house are also injured by the demolition of the house, since one of the considerations that must be weighed by the military commander in respect of house demolitions is the extent to which the other inhabitants of the house were involved in the terrorist activity of the perpetrator (see: the Awawdeh case, paragraph 18 of the opinion of Deputy President M. Naor; the Qawasmeh case, paragraph 22 of the judgment of Justice Y. Danziger). However, the Deputy President further noted in this context that “the absence of evidence concerning awareness or involvement on the part of the relatives does not prevent, in and of itself, the exercise of the power. Nevertheless, such a factor may influence the scope of the order issued by the Respondent, as aforesaid”. In my opinion, that consideration, although it does not stand alone, should be afforded considerable weight when deciding on the demolition of a building and its scope. In the past, this court has emphasized this more than once as a concern that should be afforded such weight (see for example: the Sharif case; HCJ 6026/94 Nazal v. IDF Commander in the Judea and Samaria Area, IsrSC 48(5) 339, 349-350 (1994); the Awawdeh case, paragraph 28 of the opinion of Deputy President M. Naor). I would add, without exhausting the possibilities pertaining to this consideration, that I believe that if, indeed, the family members whose home is about to be demolished can convince, by means of sufficient administrative evidence, that prior to the terrorist attack they tried to dissuade the terrorist from carrying it out, that factor should be given very significant weight, which may, in suitable cases, rule out a decision to demolish the house of those family members.

5. An additional argument that was extensively discussed by the Petitioners pertains to the matter of the effectiveness of house demolition as a deterrent of terrorism. The Petitioners supported their arguments regarding the ineffectiveness of that measure with an expert opinion that referred to various articles, including the article of Prof. Ariel Merari (Ariel Merari, Israel Facing Terrorism, 11 Israel Affairs (2005) (hereinafter: Merari), and the article of Benmelech, Klor and Berrebi (Efraim Benmelech, Esteban F. Klor and Claude Berrebi, Counter-Suicide-Terrorism: Evidence from House Demolitions, 16493 NBER Working Paper Series (2010)), which was referenced by my colleague Justice N. Sohlberg in his opinion. According to the Petitioners, these articles refute the rationale of deterrence, but a thorough review reveals that those researchers did not reach such an unequivocal conclusion. Thus, for instance, the empirical study of Benmelech, Esteban, Klor and Berrebi points to a positive correlation between house demolitions and a decline in the number of suicide attacks that they investigated, although they qualified their conclusion by noting that the correlation was found in the period that immediately followed the demolition, and emphasized that house demolition may result in an increase of other types of terrorism, which they did not investigate (ibid., page 16). Prof. Merari also referred to the effectiveness of house demolitions as a deterring factor, and summarized his comments on this issue by saying:

In general, collective anti-terrorism measures are likely to have two opposing effects on the population from which the insurgents emerge: on the one hand, they breed fear and, on the other hand, hatred to the government. The actual behavior of the affected public, as a result of the infliction of collective punishment, depends on whether fear is stronger than anger, or vice versa. Persons who are willing to kill themselves in order to kill others are, obviously, very hard to deter by the threat of punishment to themselves, but they may still care about the well- being of their families (Merari, page 230).

This conclusion is far from a decisive rejection of the rationale of deterrence. It presents two opposing effects of demolition, and states that the deterring power of demolition largely depends on the question of whether fear overcomes hate in any given case. The last sentence of the quoted paragraph also emphasizes that it is hard to deter a suicide bomber, but it is possible that such a terrorist will still consider and take account of the wellbeing of his family, and this at least implies that it may be the only way by which he may be deterred. The scholar Cheryl V. Reicin also posits that house demolitions may deter people who consider committing terror attacks, as well as people who consider supporting the terrorists, and who offer them the hospitality of their homes. In addition, according to Reicin, house demolition may cause family members to make efforts to dissuade their children or brothers from committing terror attacks, home owners may interfere and vacate individuals suspected of terrorism from their homes, and eventually, the community that is exposed to this sanction may intervene, and inform the security forces about individuals suspected of involvement in terrorism (Cheryl Reicin, Preventive Detention, Curfews, Demolition of Houses and Deportations: An Analysis of Measures Employed by Israel in the Administered Territories, 8 515, 547 (1987)). These conclusions are also far from disproving the rationale of deterrence. In this context, it is important to emphasize that in order to satisfy the first subtest of the proportionality tests, the rational connection test, it is not necessary to show that the “means that were chosen will fulfill the objective in its entirety, and partial fulfillment which is neither marginal nor negligible will suffice to satisfy the rational connection test” (HCJ 1213/10 Nir v. Chairman of the Knesset, paragraph 23 of the opinion of President D. Beinisch (February 23, 2012).  In other words, it is sufficient to be able to point to a potential of realizing the said purpose that cannot be ruled out (HCJ 9353/08 Abu Dheim v. GOC Home Front Command, paragraph 8 of the opinion of (then) Justice M. Naor (December 17, 2008) and the references there (hereinafter: the Abu Dheim case).

6. Finally, I wish to note that I see great importance in the comment made by my colleague Justice Rubinstein concerning the future need to conduct, from time to time and to the extent possible, follow-up and research concerning the house demolition measure and its effectiveness (paragraph 27 of his opinion). In this context, it is noteworthy that this issue was also examined in the past by the Shani Committee, mentioned by my colleague, which engaged in a process of “rethinking the issue of house demolition”, and reached a conclusion that was adopted by the security community at the time (2005) whereby systematic demolition of terrorists' homes for deterrence purposes in the Judea and Samaria Area should be stopped and should be reserved for extreme cases (slide 30 of the Shani Committee presentation, Exhibit 1 of the Petition). According to the security agencies, the terrorist attack at the Merkaz Harav Yeshiva in the center of Jerusalem constituted an extreme case, and recourse was made to demolition in that matter after a pause of several years. A petition that was filed with this Court regarding that matter was denied (the Abu Dheim case). The recent wave of terror that began with the abduction and murder of the three teenagers, and continued with the frequent killings and massacres of innocent civilians, passers-by and congregation members at a synagogue, also marked an extreme change, characterized by terrorists from East Jerusalem, required a renewed application of this measure. However, these extreme cases should not dissipate the need that was addressed by my colleague to re-examine from time to time, and raise doubts and questions concerning the constitutional validity of house demolition under the tests of the Limitation Clause. In his poem “The Place where We are Right", the poet Yehuda Amichai praises the doubts that should always trouble even the hearts of the righteous:

But doubts and loves

Dig up the world

Like a mole, a plow.

 

And a whisper will be heard in the place

Where the ruined

House once stood.

For these reasons, I concur in the conclusion of my colleague Justice E. Rubinstein, according to which the Petition should be denied.

Decided in accordance with the opinion of Justice E. Rubinstein.

Given this day, 9 Tevet, 5765 (December 31, 2014).

 

 

 

 

The Supreme Court sitting as the High Court of Justice

 

HCJ 6706/14

 

 

Before: The Honorable President M. Naor

The Honorable Deputy President E. Rubinstein The Honorable Justice S. Joubran

The Honorable Justice E. Hayut The Honorable Justice H. Melcer

 

The Petitioners:                1.            MK Hanin Zoabi

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

3.            The Association of Civil Rights in Israel

 

v e r s u s

 

The Respondents:           1.            The Knesset's Ethics Committee

                2.            The Chairperson of the Knesset

                3.            The Knesset

 

Petition to Grant an Order Nisi

 

Date of Session:               17th of Kislev, 5775 (December 9, 2014)

 

On behalf of the Petitioners:      Adv. Hassan Jabarin; Adv. Dan Yakir;

Adv. Maisana Morani

 

On behalf of the Respondents: Adv. Eyal Yinnon; Adv. Dr. Gur Bligh

 

 

J U D G M E N T (R E A S O N S)

 

 

President M. Naor:

 

1.            On December 10, 2014, we issued  a judgment without reasons in which the Petition was denied by a majority opinion (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer, against the dissenting opinion of Justice S. Joubran). In the judgement we ruled that:

 

"1. The Petition before us addresses the decision of Respondent 1, the Knesset's Ethics Committee, which determines that Petitioner 1 violated Rule 1A of the Rules of Ethics for Members of Knesset, and instructs that she be removed from sittings of the Knesset's plenum and committees, other than participating in votes, for a period of six months, commencing on July 30, 2014, and ending on January  29,  2015.  Approximately  half  of  the  period  of

 

 

 

removal was during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014.

 

2.            In the Petition, the Court was requested to intervene in and cancel the  Ethics Committee's decision  regarding the Petitioner. Alternatively, the Court was requested to intervene in the removal sanction that was imposed upon the Petitioner.

 

3.            On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

4.            On December 9, 2014, we heard the Parties' oral arguments.

 

5.            The six month period is meant to end on January 29, 2015. Therefore we have found it to be appropriate to give our ruling now, without reasons. The reasons shall be given separately.

 

6.            By a majority of opinions (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer) and against the dissenting opinion of Justice S. Joubran, we rule as follows: There is no place to intervene in the Ethics Committee's decision that the Petitioner violated Rule 1A of the Rules of Ethics for Members of Knesset. As for the sanction: the sanction that was imposed is indeed unusual in its severity compared to sanctions imposed in the past. However, in the circumstances at hand and in light of the Petitioner's harsh words and the timing in which they were spoken, and considering that a significant part of the period of the sanction was during times of recess, we have not found it appropriate to intervene in the broad discretion that is granted to the Ethics Committee. Inter alia, we have taken into consideration the fact that two days ago the Dispersal of the 19th Knesset Law, 5775-2014 was legislated. In light of this law, the practical significance of intervening in the sanction is miniscule, if at all existent.

 

7.            Therefore, the Petition is denied. There shall be no order for expenses".

 

We shall now elaborate on our reasons.

 

 

 

Background

 

The Complaints Against the Petitioner and Her Responses Thereto

 

2.            The Petitioner is a member of the 19th Knesset on behalf of the Balad party. On June 17, 2014, the Petitioner interviewed on a morning program on Radio Tel Aviv (hereinafter: the "Interview"). The Interview primarily addressed the abduction of the three teenagers: the late Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, which occurred on June 12, 2014, in the area of Gush  Etzion.  The Interview was held approximately five days after the abduction, at a time when the teenagers' fate was not yet known. During the Interview the Petitioner said the following:

 

"Look, look… I, let's ask a question like this, ah, naively, is it strange that people who are under occupation, who live lives that are not normal, and who live in a reality in which Israel abducts detainees every day, is it strange to you that they abduct? […] They are not terrorists […] Even if I do not agree with them, they are people who do not see any opening […] They are people who do not see any opening to change their reality, and they are forced to use these means, until Israel shall sober up a little, until the citizens of Israel, the Israeli society shall sober up a little and shall see the suffering, feel the other's suffering"

 

3.            On July 13, 2014, in the midst of operation "Protective Edge", the  www.felesteen.ps website published an article that the Petitioner wrote, and which had been previously published on the www.arab48.co.il website (hereinafter: the "Article"). Inter alia, the following, was written in the Article:

 

"In order for Israel to be convinced that it is not possible to maintain and deepen the occupation, and for it to declare the end of the achievements of the detestable trinity: the fence, the siege and coordination, which it believed turned the occupation into a no-cost occupation absent from the Israeli reality – the Palestinians must declare the end of their own lethal trinity: coordination, negotiations and the internal dispute. We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith, and unity instead of the internal dispute" (a copy of the Article in Arabic and its translation to Hebrew were attached as Exhibit P/5 of the Petition).

 

4.            Following these  remarks, a number of complaints were filed with the  Ethics Committee against the Petitioner. The main complaint was filed on July 22, 2014, by the Chairperson of the Knesset. In this complaint the Chairperson  of  the Knesset stated that while he is aware of the Ethics Committee's position that the members of Knesset's freedom of political expression must be protected, he is of the opinion that the Petitioner "has long since crossed any line with respect to the

 

 

 

conduct that is expected of the MKs" and that the many approaches that are directed to him from the public in this matter "indicate that this is not an 'ordinary' case of a harsh or outrageous remark […], but rather continuous provocative conduct, which could materially erode the status of the Knesset in the eyes of the public." The Chairperson of the Knesset's complaint also mentioned a video clip that documents a confrontation between the Petitioner and policemen during a protest. The Ethics Committee decided not to refer to this video clip in its decision, and therefore I shall not address it.

 

5.            The Petitioner filed a response to the complaint. In her response the Petitioner stated that she "completely rejects the vexatious complaint that is indicative of a dominating culture of racism and a need to rule others and oppress their political opinions". The Petitioner added that the complaints against her were filed on political grounds and that "one must not surrender to those who disagree with me and want to silence me and punish me and even retaliate against me." With regard to the things she said in relation to the abduction of the teenagers, the Petitioner stated laconically that "I referred to the context of the sentence in a series of media interviews and I shall not reiterate it again, and I shall ask that the Ethics Committee review them to receive a complete picture". It is not superfluous to note that the Petitioner did not attach the said interviews to her response. Based on her said statement, the Petitioner asked that the Ethics Committee reject the complaint.

 

The Decision which is the Subject of the Petition

 

6.            On July 29, 2014, the Ethics Committee convened to discuss the said complaints against the Petitioner. The committee decided by a majority of opinions that the two remarks specified above constitute a violation of Rule 1A of the Rules of Ethics (Decision 16/19 of the Knesset's Ethics Committee "In the matter of Complaints against Knesset Member Zoabi" (July 29, 2014)). The  committee indeed emphasized that its consistent position is that to the extent possible, the limitation of freedom of political expression of members of Knesset should be avoided; that the members of Knesset's right to express public criticism of the government is maintained also during times of war; and that the mere voicing of harsh criticism on military moves or on government policy during times of war, should not be viewed as a violation of the Rules of Ethics. However, the committee ruled that one must distinguish between legitimate protest – harsh as it may be – and encouraging the enemies of the State and legitimizing acts of terror against its citizens. The committee added that the public in Israel, like in any state, "expects that members of Parliament, who declare allegiance to the State, shall not encourage those who act against it and those who wish to kill its soldiers and citizens and shall not support them […]" (paragraphs 8-9 of the decision).

 

7.            As for the Interview, the Ethics Committee ruled that even though the Petitioner clarified that she does not agree with the abductors, her statement that they are not terrorists and her justification of their actions – especially when the abducted teenagers' fate was yet unknown – constitutes "identifying with enemies of the State" (paragraph 9 of the decision). Regarding the Article, the committee ruled that it is not possible to interpret its content as anything other than "statements which intend to harm  the State  of Israel,  its security and its basic  interests" (paragraph 10 of the decision).

 

 

 

 

8.            The Ethics Committee ruled that the Petitioner's words do not coincide with the State's best interest and prejudice the public's trust in the Knesset and the Knesset's image. Therefore, it was ruled that the Petitioner violated Rule 1A of the Rules of Ethics and imposed a sanction of her removal from the sessions of the Knesset plenum and its committees, other than participating in votes, for a period of six months, beginning from July 30, 2014, and ending on January 29, 2015. Approximately three months of the removal period were during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014. On December 9, 2014, the Dispersal of the 19th Knesset Law, 5775-2014, was published in the Official Gazette (Reshumot). This law provides that the 19th Knesset shall disperse before the end of its term and that the elections for the 20th Knesset shall take place on March 17, 2015. Consequently, the Knesset Committee decided that an elections recess shall begin on December 11, 2014, lasting until the 20th Knesset convenes (see: Knesset Committee Decision "In the Matter of the Dates of the Elections  Recess and the Knesset's Activity During the Recess" (December 10, 2014)). Therefore, the remaining part of the period of removal – over a month and a half – also falls during recess.

 

9.            To complete the picture, it shall be noted that on August 3, 2014, the Petitioner's attorneys requested, "in order to file a petition to the High Court of Justice" against the decision, to review the minutes of the Petitioner's matter and the materials presented to the committee in the process of reaching its decision. On August 7, 2014, the Knesset's legal counsel replied to the request and informed the Petitioner that pursuant to Rule 21 of the Rules of Ethics, the ethics proceedings, including the documents and the minutes in the matter thereof, are privileged. The Knesset's legal counsel explained in his response that the committee recognizes that there are exceptional situations in which public interest requires disclosure of material from its sessions, such as a situation in which the use of the material is required for the purpose of legal proceedings. However, he stated, the exception relates to the circumstances in which the material from the committee's sessions is required for other legal proceedings and not for the purpose of challenging the decision of the Ethics Committee itself. It was elucidated that the committee is concerned about creating a precedent which will adversely affect the ability of committee members to properly fulfill their duties. Therefore, he informed that the committee unanimously rejected the petition to lift the privilege from the minutes of the session, but decided that if indeed a petition shall be filed, it shall provide the minutes of the session in the Petitioner's matter, for the Court's eyes only.

 

The Petitioner's Appeal of the Decision

 

10.          On August 13, 2014, the Petitioner appealed the Ethics Committee's decision before the plenum of the Knesset. The Petitioner's appeal was filed pursuant to Section 43 of the Knesset's By-Laws, which provides that a member of Knesset may appeal a decision of the Ethics Committee before the plenum, if it decided, inter alia, to remove him from Knesset sessions for the duration of four days of sessions, or more.

 

11.          In her appeal, the Petitioner argued that the Ethics Committee acted ultra vires and in a manner that is contrary to the principle of freedom of political expression. She

 

 

 

further argued that it emerges from the reasoning of the decision that it is not based on a proper evidentiary foundation, and that the sanction imposed is "as far as is known, the most severe sanction that was ever imposed upon a member of Knesset", due to irrelevant considerations and is disproportionate. The Petitioner requested that the Chairperson of the Knesset schedule an urgent session before the plenum of the Knesset to hear the appeal, and on August 20, 2014, she also sent a reminder letter regarding this matter. On August 25, 2014, the Knesset's legal counsel replied to the Petitioner's letter claiming that the Chairperson of  the Knesset does not have authority to convene the plenum of the Knesset during the recess (other than pursuant to Section 9(b) of the Knesset Law, 5754-1994, which empowers him to convene the plenum of the Knesset during recess, in accordance with the demand of 25 members of Knesset or of the Government). Therefore, he informed that it will not be possible to hear the appeal before the beginning of the winter session.

 

12.          The Knesset plenum held a discussion regarding the Petitioner's appeal on October 29, 2014. The Petitioner argued before the plenum, inter alia, that the Ethics Committee's decision is unprecedented in its nature and severity and that this is a vindictive and disproportionate decision. The chairperson of the Ethics Committee, Knesset Member Yitzchak Cohen, responded to the Petitioner's statements. In his response, the chairperson of the Ethics Committee reiterated the committee's main reasons, as were expressed in its decision. In the vote that took place thereafter, 16 members of Knesset voted in favor of accepting the Petitioner's appeal, 68 members of Knesset objected and one member of Knesset abstained. Thus, the petition was denied.

 

The Petition before Us

 

13.          The Petition before us was filed on October 7, 2014, approximately two and half months after the Ethics Committee's decision in the Petitioner's matter and before her appeal had been heard by the Knesset plenum. Therefore, and in light of the Respondents' notice dated October 20, 2014, that the appeal will be heard on October 28, 2014, the Court ruled that it is inappropriate to address the Petition before the Knesset rules on the Petitioner's appeal (Justice Y. Danziger, decision dated October 22, 2014). After the Knesset plenum denied the Petitioner's appeal, the discussion regarding the Petition was renewed. On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

On December 9, 2014, we heard the Parties' oral arguments.

 

The Petitioners' Arguments

 

14.          According to the Petitioners, the Ethics Committee acted ultra vires deciding as it did. The Petitioners claimed that the Petitioner's remarks are political remarks, which are protected by the material immunity granted to a member of Knesset under Section 1(a) of the Knesset Members Immunity, Rights and Duties Law,

 

 

 

5711-1951 (hereinafter: the "Immunity Law"). The Petitioners claimed that, following the Interview, the Petitioner explained in the media that she objects to causing harm to civilians, and to abduction of civilians in particular. The Petitioners further argued that the Attorney General examined complaints that were filed against the Petitioner following the Interview and deemed it inappropriate to open a criminal investigation into her remarks. To this regard, the Petitioners filed the State's response to the petition in HCJ 5716/14 which was directed against the Attorney General's decision in this matter (the hearing in said petition is scheduled to take place on June 10, 2015). In the aforementioned response it was noted that even though the Petitioner identified with the actions of the abductors, her statements did not amount to incitement to violence. Therefore, the Petitioners argued that the Petitioner's remarks which are the subject of the Petition are part of her freedom of political expression, and as such the Ethics Committee did not have any authority to intervene therein.

 

15.          The Petitioners further argued that while this Court has reiterated in its rulings that the material immunity of members of Knesset does not serve as a defense against sanctions at the ethical level, that case law applies only to inappropriate conduct within the house, or to slanderous remarks against another member of Knesset, an individual or a certain public. Such remarks, so it is argued, relate to managing the internal affairs of the Knesset and the relationship between its members and therefore fall within the authority of the Ethics Committee. The Petitioners draw this argument, inter alia, from a principle decision of the Ethics Committee (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013) (hereinafter: "Decision 2/19")), which states that, as a rule, complaints regarding political remarks by members of Knesset should not be discussed.

 

16.          The Petitioners argued that the Ethics Committee acted ultra vires also by basing its decision on Rule 1A of the Rules of Ethics, which "prescribes general values and principles and is not an operative provision" (paragraph 37 of the Petition). This rule, they claimed, has only a declaratory status and thus it is impossible to impose a sanction due to a violation thereof. The Petitioners claimed that the Ethics Committee is only authorized to impose sanctions in consequence of a violation of Rules of Ethics that anchor specific norms relating to  morality, conflict of interest, proper activity of the Knesset and proper conduct in the house. The Petitioners further argued that this is also customary in England. Finally, it was argued that the Ethics Committee is not authorized to determine which remarks are for the benefit of, or contrary to, the State's best interest. In light of all of the reasons specified above, the Petitioners argued that the committee's decision was ultra vires.

 

17.          Alternatively the Petitioners argued that the sanction imposed upon the Petitioner is "discriminatory and exceedingly severe" (paragraph 51 of the Petition). The Ethics Committee imposed its most severe sanction and for the longest possible period of time  and  therefore the  Petitioners  argued that its decision is disproportionate. According to the Petitioners this can also be deduced from a comparison to the committee's previous decisions which were quoted in the Petition itself, and namely the principle decision in the matter of remarks by members  of  Knesset  (Decision  2/19).  It  shall  be  noted  that  the  Petitioners

 

 

 

complained inter alia, about the Ethics Committee's refusal to provide them with the minutes of the Committee's session regarding the Petitioner's matter and requested that we instruct that they be delivered thereto. However, in the oral hearing, and due to the need for a quick ruling, the Petitioners' attorney did not insist on this, while reserving all of his arguments.

 

The Respondents' Arguments

 

18.          The Respondents argued that according to case law, the material immunity does not preclude the Ethics Committee from taking disciplinary actions against a member of Knesset. According to them, particularly in light of the existence of the material immunity, which does not allow for criminal or civil action to be taken against a member of Knesset due to his remarks, it is important to allow the Knesset to deal with such remarks at the ethical level. It was argued that the case law took a principle approach and did not support the argument that the imposition of sanctions for remarks that are covered by material immunity should only be possible in cases where the remarks are harming to collegial relationships between members of Knesset or disrupt the Knesset's proper conduct. The Respondents further argued that the fact that in a long list of decisions, the Ethics Committee recognized the importance of the freedom of political expression granted to members of Knesset, and that it is necessary, to the extent possible, to refrain from limiting it, does not mean that the Committee does not have the authority to impose sanctions for political remarks. This is not a matter of authority, so it is argued, but rather a matter of discretion.

 

19.          The Respondents further claimed that Rule 1A of the Rules of Ethics is not a declaratory rule but rather an operative provision, the violation of which can carry the imposition of sanctions. According to them, the Rules of Ethics include a variety of norms, part of which are designed as rules and part of which are designed as principles (standards) – but all of which are operative. To illustrate their argument, the Respondents stated that Rule 1A was used in the past as a basis for imposing sanctions at an ethical level in a series of cases, both as a single normative source and alongside other rules of ethics.

 

20.          As to the exercise of discretion, the Respondents argued there was no flaw in the conclusion that the Petitioner violated the Rules of Ethics. Especially taking into consideration the broad discretion that is granted to the Ethics Committee in such matters. According to the Respondents, the sanction that was imposed upon the Petitioner is proportionate. The main reason indicated by the Respondents was that the severity of the sanction is commensurate with the severity of the violation for which it was imposed – a severity that stems from the content of the Petitioner's statements and the timing thereof, and which justifies deviating from the lenient policy which the Ethics Committee has exercised with respect to political remarks. The Respondents further argued that the Petitioner's remarks during the Interview "can be perceived as legitimization of and identification with the State's enemies who are carrying out acts of terror against the citizens of the State" (paragraph 70 of the Respondents' response), at a sensitive time – approximately five days after the abduction of the teenagers and at a time when their fate was unknown. The statement that the Petitioner does not agree with the abductors does not diminish the severity of her remarks. It is further argued that the Petitioner's remarks in the

 

 

 

Article can be deemed as a call to harm the State of Israel, in the midst of the fighting in the Gaza strip during the "Protective Edge" operation. The Respondents also claimed that the time the sanction came into effect, which was at the beginning of the Knesset's summer recess, should also be considered. According to the Respondents, practically speaking this was a removal that, when decided, was for approximately three months, since during the recess the Knesset plenum only assembles in rare cases and the majority of the Knesset committees convene relatively infrequently.

 

Discussion and Ruling

 

21.          The main questions that are presented in this case are whether the Ethics Committee is authorized to impose sanctions against the Petitioner because of her remarks, which in and of themselves are protected by material immunity and which are not among those remarks that are defined as remarks that disrupt the Knesset's work or the internal relationships between its members; and whether there are provisions in the Rules of Ethics that authorize the Ethics Committee to impose sanctions in consequence of such remarks. If such authority exists, this shall lead to an additional question – whether such authority, in the circumstances at hand, was exercised lawfully. I shall discuss the questions in the order of their appearance.

 

Was the Ethics Committee Authorized to Make the Decision?

 

22.          Section 17 of the Basic Law: The Knesset prescribes that "The  members  of Knesset shall have immunity; details shall be determined in the law". The details of the immunity were determined in the Immunity Law. Sections 1(a) – 1(A1) of the Immunity Law, provide:

 

 

Immunity in the Framework of Fulfilling a Position

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal actions, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

[…]

 

(a1) To avoid doubt, an act, including, a remark, that are not random, by a member of Knesset, which constitutes any of the following, for the purpose of this section is not deemed an expression of an opinion or an act that are made in the framework of fulfilling his position or for the sake of fulfilling his position as a member of Knesset:

 

 

 

(1)          Denial of the existence of the State of Israel as the state of the Jewish people;

(2)          Denial of the democratic character of the State;

(3)          Incitement to racism due to color or racial belonging or ethnical-national original.

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad.

 

Section 1(a) of the Immunity Law grants a member of Knesset protection against criminal or civil liability and against any other legal action which could be taken, inter alia, due to expression of opinion in the framework of fulfilling his position. Section 1(a1) sets limits to this immunity.

 

23.          Alongside the material immunity, Section 13E(a) of the Immunity Law authorizes the Knesset Committee to promulgate Rules of Ethics for Members of Knesset. Additionally, Section 13D of the Immunity Law grants the Ethics Committee of the Members of Knesset the authority to judge a member of Knesset, inter alia, in matters involving the violation of the Rules of Ethics. These authorities derive from the Knesset's constitutional authority to determine its working procedures (Section 19 of the Basic Law: The Knesset). In the matter at hand, the Committee ruled that the Petitioner violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. These rules provide as follows:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

24.          The sanctions that the Ethics Committee may impose upon a member of Knesset are set in Section 13D:

 

The Ethics            13D. (a) The member of Knesset who committed

 

 

 

Committee    one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated a rule of the Rules of Ethics. […]

(d)          If the Ethics Committee ruled, by a majority of the votes of all of its members, that the member of Knesset violated the provisions of sub-section (a)(1), (1A) or (2), it may impose one of the following thereon:

(1)          A comment;

(2)          A warning;

(3)          A reprimand;

(3A) A severe reprimand;

(3B) Denial of the right to receipt the right to speak in all or some of the Knesset committees of the plenum, for a period that shall not exceed ten days of sessions;

(3C) Limitations of his activity as a member of Knesset, including prohibiting filing bills, agenda proposals, parliamentary questions, etc. except limitations regarding the right to vote, all as the committee shall decide and for a period that it shall decide and provided that the said period shall not exceed the period that remains until the end of such Knesset's session;

(4)          Removal from the sessions of the Knesset plenum and its committees for a period that shall not exceed six months, provided that the member of Knesset shall be entitled to enter the session solely for the purpose of voting;

(5)          Denial of salary and Other Payments for the period of the absence as stated in Section 2(a) or denial of salary and Other Payments for a period which shall not exceed one year due to any violation of any other provision of Section 13A.

For this purpose, "Other Payments" – payment pursuant to Chapter 9 of the Knesset Law, 5754-1994, and payments by virtue of the Retirement of Office Holders in Government Authorities Law, 5729-1969.

 

(d1) If the Ethics Committee has ruled by a majority of votes of all of its members that a

 

 

 

member of Knesset violated the provisions of sub-section (a)(3), it may exercise its authority pursuant to the provisions of sub-section (d), other than the authority under sub-section d(5).

 

25.          From the above citations, one can conclude that the Ethics Committee may impose any sanction provided in Section 13D(d) of the Immunity Law, other than the sanction provided in Section 13D(d)(5), which addresses the denial of salary or Other Payments, upon a member of Knesset who violated any of the Rules of Ethics. In the case at hand, the Ethics Committee imposed a sanction upon the Petitioner pursuant to Section 13D(d)(4) of the Immunity Law, i.e., a sanction of removal from the sessions of the Knesset plenum and its committee for six months. Prima facie, it is the maximum sanction that could be imposed due to violation of any of the Rules of Ethics. It shall be noted that the option of imposing such a sanction was added in the amendment to the Immunity Law from 2002 (Knesset Members Immunity, Rights and Duties Law (Amendment no. 28), 5762-2002). I shall return to the matter of the sanction further on.

 

26.          The parties to the Petition before us assumed that the above-quoted remarks by the Petitioner are covered by the material immunity that is granted to her as a member of Knesset, under Section 1(a) of the Immunity Law. This leads to the question whether or not said immunity prevents the Ethics Committee from addressing these remarks. In my opinion, the answer should be negative. In HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) (hereinafter: the "Makhoul Case"), this Court (President A. Barak, with the consent of Justices A. Procaccia and S. Joubran) ruled that the material immunity of a member of Knesset does not extend to the actions of the Ethics Committee against any of the members of Knesset. There it was ruled as follows:

 

"It has been found that the Immunity Law, in that part that relates to the immunity of a member of Knesset, was primarily meant to allow the member of Knesset to perform his work as required and to protect him against being harassed by the executive authority. The Immunity Law was not meant to prevent the Knesset from dealing with conduct occurring within itself that violate its own Rules of Ethics. Indeed, actions and remarks that fall within the framework of material immunity benefit from broad protection. As such, a member of Knesset's immunity cannot be lifted in consequence thereof. The member of Knesset is not exposed to criminal proceedings or civil actions in consequence thereof. However, such rule does not mean that such actions cannot be the subject of other internal proceedings of the Knesset, in general, and of the proceeding pursuant to Section 13D of the Immunity Law [a proceeding before the Ethics Committee – M.N], in particular. This does not mean that the Ethics Committee is prevented from handling them […]. Indeed, the material immunity protects the member of Knesset against legal actions being taken against him. However, such legal action

 

 

 

does not include actions which the Knesset takes vis-à-vis itself, when at hand are internal Knesset matters […]" (on page 388; emphases added – M.N).

 

Similarly, in the Miari Case, the justices were of the opinion that the material immunity does not apply to sanctions which the Knesset imposes upon its members, pursuant to its By-Laws, which also incorporate the Rules of Ethics (HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 218-219, 234 (1987) (hereinafter: the "Miari Case")). Therefore, according to case law, material immunity does not shield members of Knesset from the authority of the Ethics Committee (compare: Bar Association Appeal 8/79 Sufrin v. The Tel Aviv District Committee of the Bar Association, PD 34(4) 185, 188 (1980) (hereinafter: the "Sufrin Case")). The Petitioners are not asking that we deviate from this case law, but rather that we interpret it narrowly. According to them the Makhoul rule applies only to circumstances relating to remarks that were made within the Knesset building or to slanderous remarks which can disrupt the Knesset's proper work or can harm the internal relationships between its members. Whereas in the case at hand, we are dealing with, what the Petitioners refer to as "pure" political remarks made in the media. I do not accept this distinction proposed by the Petitioners. Indeed the circumstances of the Makhoul Case were different from those at hand, since that case regarded a sanction that the Ethics Committee imposed due to prejudicial remarks against the government, which were made during a speech in the Knesset plenum. Notwithstanding, the main question that was raised and discussed in the Makhoul Case was a question of principle, and it addressed the relation between the Rules of Ethics and  the material immunity granted to members of Knesset. The Court ruled on this question, and  determined  that imposing sanctions  due  to  unethical  actions or remarks does not constitute a circumvention of the material immunity:

 

"Section 13D, which anchors the authorities of the Ethics Committee, does not prejudice the material immunity that is prescribed in Section 1 [of the Immunity Law – M.N.]. In fact, this section, which provides for an internal judgment mechanism, an ethical-disciplinary judgment, is meant to complement and realize the Immunity Law's underlying objectives. Actions taken at an ethical level do not circumvent the protection that is granted to the member of Knesset in the Immunity Law. It is not for no reason that the Ethics Committee's authorities are anchored in the Immunity Law which determines the members of Knesset's immunity. Section 13D complements that which is stated in Section 1. Thus, while Section 1 exempts the member of Knesset from civil or criminal liability due to unethical remarks said in the framework of fulfilling his position (or for the sake of fulfilling his position), Section 13D, which is of the same normative standing, clarifies that the member of Knesset is not absolutely exempt. Indeed, Section 13D of the Immunity Law reflects the 'interest of the Knesset itself to denunciate negative conduct among its member, and the public importance this must be granted'[…]"

 

 

 

(on page 339; emphases added – M.N).

 

These statements are also relevant to the remarks which are the subject of our discussion, even though they were made outside of the house and not in connection with a specific organization or person. The material immunity was meant to ensure that a member of Knesset would have freedom of expression and opinion, without being concerned that this could cost him in a criminal conviction or a personal monetary charge in a civil proceeding (see: HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 300 (2006) (hereinafter: the "Bishara Case");

HCJ 1843/93 Pinchasi v. The Israel Knesset, PD 49(1) 661, 682 (1995); Criminal Appeal 255/68 The State of Israel v. Ben Moshe PD 22(2) 427, 439 (1968)). Additionally, the material immunity was meant to promote parliamentary supervision of the executive authority, without being concerned of being harassed thereby. However, the material immunity was not meant to protect a member of Knesset against internal criticism applied by the Ethics Committee. As has been ruled "The purpose of the Immunity Law was not to grant the legislative authority a mechanism that would prevent it from critiquing the actions of its members, while frustrating its constitutional authority to determine its own procedures […]" (the Makhoul Case, on page 337; emphasis added – M.N). The objective of the Immunity Law is not to prevent the Knesset from taking actions at the internal-ethical level, pursuant to the Rules of Ethics that were determined. Such conclusion is also supported by the material differences between these arrangements: a ruling that a certain act by a member of Knesset is not covered by the material immunity or that immunity should be lifted also has implications towards entities outside of the Knesset. In contrast, the ethics proceedings are internal proceedings (see and compare: the Miari Case, on page 196; compare: HCJ 306/81 Flatto Sharon v. The Knesset Committee, PD 35(4) 118, 126 (1981) (hereinafter: the "Flatto Sharon Case")). Determining that a member of Knesset's remark is not covered by the material immunity could result in criminal charges, with all that that entails. In contrast, the ruling that a member of Knesset violated one of the Rules of Ethics could at most result in a partial interruption of his parliamentary activity, for a limited period of time (see and compare: Permission for Civil Appeal  7504/95  Yassin  v. The Registrar of  Parties,  PD 50(2)  45 (1996); the Bishara Case, on pages 313-314, 318; compare: Permission for Civil Appeal 2316/96 Isaacson v. The Registrar of Parties, PD 50(2) 529 (1996); see also in  the  judgment of the  European Court  of Human Rights, in  which the majority opinion addressed the distinction between immunity that is granted to a member of parliament and internal parliamentary critique of his conduct; A. v. United Kingdom, 2002-X Eur. Ct. H. R. 917, para 86). The harm caused by determining that a member of Knesset violated one of the Rules of Ethics is less intense than in the case of determining that material immunity does not apply to his actions. The applicability of the material immunity and its objectives can be a consideration in the framework of the Ethics Committee's decisions, but they do not undermine its authority. In light of that stated, even assuming that the Petitioner's remarks are covered by the material immunity, there was nothing preventing the Ethics Committee from addressing them pursuant to the existing Rules of Ethics.

 

27.          As mentioned, the Petitioners further argued in a general and sweeping manner that  the  Ethics  Committee  has  no  authority  to  address  political  remarks  by

 

 

 

members of Knesset and that its authority is limited to inappropriate conduct of members of Knesset within the house or to the internal relationships between the members. I do not accept these arguments. Indeed, freedom of political expression is of special importance for a member of Knesset, since it is by such means that the member of Knesset expresses the positions of the public that elected him. This is particularly true when a member of Knesset who represents a minority group is concerned (see also, in a context similar to the matter at hand, the position of the European Court of Human Rights in this matter: Szel v. Hungary, App. no. 44357/13 (Sep. 16, 2014) (hereinafter: the "Szel Case"); Karacsony v. Hungary, App. no. 42461/13 (Sep. 16, 2014) (hereinafter: the "Karacsony Case")), "The political expression – the speech, the article, the interview – are the primary workings tools of the member of Knesset" (the Bishara Case, on page 325; see also, ibid, on page 317). The freedom of expression also affects the disciplinary rules that apply to members of Knesset (compare: Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel (January 1, 2002) (hereinafter: the "Sheftel Case"); Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227, 237 (1986)). Due to freedom of expression, the ethical review of remarks by a member of Knesset must be as limited as possible. Indeed, the Ethics Committee instructed itself – and justifiably so – to refrain, to the extent possible, from limiting the members of Knesset's freedom of political expression. In Decision 2/19, the committee decided as follows:

 

"[…] If, in all that relates to political remarks, the committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing,  slandering, mudslinging and humiliating of individuals and publics, the committee's position is materially different. The committee is of the opinion that such remarks materially harm the status of the Knesset and its dignity […]" (emphasis omitted – M.N).

 

28.          The Ethics Committee expressed a similar position in additional principle decisions (see: Decision 83/18 of the Knesset's Ethics Committee "In the Matter of Complaints regarding Remarks by Members of Knesset Against Persons and Organizations" (December 31, 2012); Decision 7/18 of the Knesset's Ethics Committee "In the Matter of Ethics and Freedom of Expression – the Committee's Decisions regarding Remarks by Members of Knesset" (October 12, 2009)). However, this does not mean that the committee is not authorized to address extreme expressions that amount to supporting acts of terror against the citizens of the State or identifying with such actions. The purpose of the Rules of Ethics for Members of Knesset is to maintain proper conduct by members of Knesset in order to foster the public's trust in the Knesset, preserve the dignity of the Knesset and its integrity (see and compare: the Sheftel Case, paragraph 22 of my judgment, Bar Association Appeal 2579/90 Bar Association District  Committee  v. Anonymous, PD 45(4) 729, 733 (1991); see also: the Report of the Committee for Preparing the Rules of Ethics for Members of Knesset, December 2006, on pages 43-45 (hereinafter: the "Rules of Ethics Preparation Committee Report")). The public's trust in the Knesset may also be prejudiced by remarks made by a member

 

 

 

of Knesset outside of the Knesset, which are not necessarily related to inappropriate conduct within the Knesset or to the internal relationships between its members. This is the case, for example, when an act or remark that is interpreted as supporting violence against citizens is concerned. A member of Knesset carries the Rules of Ethics with him wherever he goes (compare: the Sheftel Case, paragraphs 13-16 of my judgment). Their applicability is not limited to his relationship with other members of Knesset or internal parliamentary conduct. It is possible that the applicability of the Rules of Ethics on remarks outside of the Knesset is narrower. However, the circumstances of the case at hand are extreme. It is worth noting that the code of ethics for members of Parliament in Britain, to which the Petitioners referred, provides that the Rules of Ethics are not intended to regulate a member of Parliament's conduct in his personal life, outside the walls of the parliament. However, conduct by a member of Parliament that significantly damages the reputation or the integrity of the parliament or its members is excluded from that rule (U.K Code of Conduct for Members of Parliament (passed pursuant to the Resolution of the House of Jul. 19, 1995) § 2-3 (hereinafter: "U.K. Code of Conduct for Members of Parliament").

 

29.          The Petitioners further argued that the Ethics Committee's decision in the case at hand does not coincide with its above-mentioned principle decisions which reject intervening in the members of Knesset's freedom of political expression. However, these decisions do not constitute a precedent that denies the committee of its authority to address extraordinary remarks which in its opinion constitute a violation of the Rules of Ethics. The Ethics Committee elaborated on this matter in its decision that addressed harsh remarks by a member of Knesset during the "Pillar of Defense" operation, against those he referred to as "leftists":

 

"The majority of the complaints that have been filed to the Ethics Committee in the 18th Knesset were related to remarks by members of Knesset. The Ethics Committee, despite repeatedly being of the opinion that harsh and outrageous remarks were at issue, decided, in the majority of cases, not to exercise its  authorities, based on an orientation  of not narrowing the members of Knesset's freedom of expression […] however the fundamental principle of freedom of expression cannot protect anything a member of  Knesset says, and the committee is of the opinion that this is one of the cases in which it must intervene and express its opinion that a line has been crossed between a legitimate, albeit harsh and outrageous, statement and words of incitement. Statements in the form of 'Leftists Out', 'Leftist to Gaza' and 'Leftist Traitors' are not statements in the framework of the broad freedom of political expression which is granted to members of Knesset and do not coincide with the proper and expected conduct of a member of Knesset […]" (Decision 85/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Michael Ben Ari regarding Remarks" (December 31, 2012)) (emphasis added – M.N.)

 

 

 

30.          The Ethics Committee also found it to be justified in other cases to exercise its authority with regard to remarks by members of Knesset which encouraged acts of terror or violence. For example, the committee decided to apply sanctions for statements praising Shahids (martyrs) (Decision 73/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Ahmad Tibi due to a Speech on Martyrs Day'" (March 5, 2012) (hereinafter: the "Decision regarding the "Martyrs Day"")); for public support of the Intifada (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Uri Yehuda Ariel against Knesset Member Ahmad Tibi" (June 24, 2003) (hereinafter: the "Decision regarding Supporting the Intifada")); and for the statement "Whoever removed sovereign land from the State of Israel – is to be sentenced to death" (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Colette Avital against Knesset Member Arie Eldad" (June 24, 2008) (hereinafter: the "Decision in the Matter of Knesset Member Eldad"). Therefore, the Ethics Committee's principle decisions do not prevent its intervention in the current case and exercising the committee's authority with respect to remarks of the kind addressed in the Petition is not unprecedented.

 

31.          An additional argument by the Petitioners regarding the Committee's authority is that there is no explicit provision in the Knesset's By-Laws or in the Rules of Ethics that authorizes the Ethics Committee to impose sanctions against the Petitioner's remarks. The Petitioners argued that Rule 1A of the Rules of Ethics – upon which the Ethics Committee's decision in the Petitioner's matter relied – is a "declaratory section that includes abstract principles and values and therefore has only an interpretational declaratory status" (paragraph 39 of the Petition), and does not have operative status. This argument, too, is to be denied. The provision of Rule 1A of the Rules of Ethics for Member of Knesset, as was presented above, prescribes fundamental values which bind the member of Knesset, such as promoting society and the best interest of the State and preserving the dignity of the Knesset and its members. Other Rules of Ethics regulate a series of specific matters, such as additional occupation of a member of Knesset (Chapter E of the Rules of Ethics) or provisions that relate to a declaration of capital (Chapter F of the Rules of Ethics).

 

32.          The fundamental values that were prescribed in Rule 1A of the Rules of Ethics outline general criteria for the members of Knesset's conduct (compare: Bar Association Appeal 7892/04 The Tel Aviv District Committee of the Bar Association v. Boteach, paragraph 14 of Deputy President M. Cheshin's judgment (May 10, 2005) (hereinafter: the "Boteach Case")), and express the need to preserve the public's trust in the Knesset. I am of the opinion that they should be considered as having an independent status, which allows imposing ethical sanctions in consequence of the violation thereof. This is necessary since naturally, specific rules of ethics do not cover all the issues that could arise at an ethical level. In the absence of a specific rule that regulates a specific situation, the member of Knesset can  find guidance in  advance in the  general values; and retroactively, the Ethics Committee can decide that a member of Knesset violated the Rules of Ethics, by violating one of the general values (see also: the Rules of Ethics Preparation Committee Report on pages 45-46; Proposal for Code of Ethics that was Submitted by the Knesset Committee's Rules of Ethics Preparation Sub-Committee,  2011;  Assaf  Shapira  "Ethics  in  the  Knesset"  Parliament  70

 

 

 

(2011). This illustrates the advantage of normative arrangements that are formatted as principles, which allow them to be applied in dynamic circumstances (for the distinction between rules and principles see, for example: Aharon Barak Purposive Interpretation in Law 248-249 (2003)).

 

33.          My conclusion also coincides with this Court's judgment in the Makhoul Case, where the Court did not find cause to intervene in the ethical sanctions that were imposed upon a member of Knesset in consequence of violating Rule 1A of the Rules of Ethics. It shall be noted that Rule 1A, as well as Rule 2 of the Rules of Ethics, which also outlines general criteria for the conduct of the members of Knesset, has served in various cases as the basis for imposing ethical sanctions on members of Knesset (see, for example: Decision 30/17 of the Knesset's Ethics Committee "In the Matter of Mutual Complaints of Knesset Member Effi Eitam and Knesset Member Ahmad Tibi" (May 27, 2008); Decision 2/17 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Ruhama Avraham against Knesset Member Sofa Landver" (July 11, 2006)). Furthermore, general principles exist in various systems of disciplinary rules. The violation of these principles could justify imposing a disciplinary sanction upon the violating party. For example, the Rules of Ethics for Lawyers include general principles, the violation of which could raise cause for being found guilty of a disciplinary offense (see: Rules 2, 23, 32-33 of the Bar Association (Professional Ethics) Rules, 5746-1986); the Boteach Case, paragraph 14 of Deputy President M. Cheshin's judgment; Bar Association Appeal 736/04 District Committee of the Bar Association v. Mizrachi PD 58(6) 200 (2004); Bar Association Appeal 2379/07 Tel Aviv – Jaffa District Committee of the Bar Association v. Rosenzweig (February 12, 2008); also see and compare: Section 61(3) of the Bar Association Law, 5721-1961, which prescribes that any act or omission that do not befit the legal profession are, inter alia, a disciplinary offense; Bar Association Appeal 15/88 Anonymous v. The  State's Attorney, PD 43(1) 584. 588 (1989); Bar Association Appeal 17/79 Tel Aviv Jaffa District Committee of the Bar Association v. Anonymous, PD 34(3) 756, 660-661 (1980); also see: Gabriel Kling Ethics For Lawyers 489-494 (2001)).

 

34.          Similarly, the Rules of Ethics for judges include general principles, the violation of which has operative implications (see: Rules 1-7, and particularly Rule 2(b) of the Rules of Ethics for Judges, 5767-2007; see also: Gabriel Kling Ethics for Judges 15-16 (2014)). Accordingly, the judges' ethics committee has refrained from approving certain actions in advance, based on general principles, such as the principle that a judge must refrain from actions which do not befit his status (see: Decision A/13/17 (February 25, 2013), which did not permit judges to participate in a personal mentoring venture of the Executives Program in the School of Public Policy; Decision A/11/53 (July 27, 2011), that it would not be appropriate to allow charging the parties to a legal proceeding a judge's travel expenses; see also Section 18(a) of the Courts [Consolidated Version] Law, 5744-1984, which prescribes that the Minister of Justice may file a complaint to the disciplinary court against a judge who behaved in a manner that does not befit the status of a judge in Israel). Thus, applying such a rule with respect to the Rules of Ethics for Members of Knesset is not unusual compared to other systems of disciplinary rules. In any event, the Ethics Committee has broad authority to address matters that relate to the ethics of the members of Knesset, including a matter that does not have a

 

 

 

provision in the Rules of Ethics (Rule 24 of the Rules of Ethics). It follows, a fortiori, that the committee is authorized to address the violation of the general values which are anchored in the rules themselves.

 

35.          Among the general principles that are set in Rule 1A are the member of Knesset's obligations to act to advance the best interest of the State and preserve the dignity of the Knesset. The decision at hand is based on these obligations. Once I have reached the conclusion that the committee is authorized to address the violation of the general principles, it follows that it is, inter alia, authorized to address the duty to act for the benefit of the best interest of the State. As such, the Petitioners' argument that the Ethics Committee cannot decide who is acting for the benefit of the State, since such a decision is reserved for the voting public or that such a decision opens "a dangerous opening for political persecution" (paragraph 34 of the Petition), is in fact directed against the Rules of Ethics themselves and not towards the decision which is the subject of the Petition. In comparison, the Rules of Ethics in Britain include similar principles, including the duty of the members of Parliament to act in the interests of the nation as a whole (U.K. Code of Conduct for Members of Parliament § 4-7).

 

36.          In light of that stated above, the decision of the Ethics Committee was given within its authority. The question that remains is whether it is appropriate to intervene on the merits of the decision. On this level, the question that arises is whether the Petitioner's remarks constitute a violation of the Rules of Ethics, and if so – whether the sanction that was imposed due to such violation befits the severity of the offense. It shall already be clarified here that the Petitioners' arguments focused on the question of the Ethics Committee's authority to address the Petitioner's remarks, and not on the question of whether the committee was correct in its conclusion that ethical obligations were violated (compare: the Sheftel Case, paragraph 11 of my judgment). As mentioned, the Petitioners also argued that it is appropriate to intervene in the sanction that was imposed upon the Petitioner. However, in order to present a complete picture, I shall address the question of whether or not the Rules of Ethics were violated.

 

The Discretionary Level: Was the Ethics Committee's Decision that is the subject of the Petition Adopted Lawfully?

 

37.          The examination of the Ethics Committee's decision in the case at hand derives from the scope of the judicial review of the Ethics Committee's decisions (see: the Makhoul Case, on page 340). The scope of the judicial review of the Knesset's decisions changes in accordance with the essence of the decision under review: Legislative acts that were completed, internal parliamentary proceedings and quasi-judicial decisions (see: HCJ 652/81 Sarid v. The Chairperson of the Knesset, PD 36(2) 197 (1982); the Flatto Sharon Case, on pages 124-126)). When the Ethics Committee addresses complaints against members of Knesset, it is fulfilling a quasi-judicial duty (the Makhoul Case, on page 340; HCJ 7993/07 Legal Forum for Israel v. The Knesset's Ethics Committee, paragraph 6 of my judgment (April 30, 2009) (hereinafter: the "Legal Forum A Case"); HCJ 6280/07 Legal Forum for Israel v. The President of the State, paragraph 22 of Justice A. Procaccia's judgment (December 14, 2009) (hereinafter: the "Legal Forum B Case")).

 

 

 

 

In principle, the judicial review that is applied to the Knesset's quasi-judicial decisions is the same as the judicial review that is directed towards quasi-judicial authorities (see: ibid). However, in contrast to other quasi-judicial authorities, the Ethics Committee of the Members of Knesset, mainly addresses internal Knesset matters that relate to discipline and the ethics of its members. "[…] the essence of the activity of the Ethics Committee, in contrast, for example, from the removal of immunity which is performed by the Knesset Committee, is directed internally towards the Knesset, and in fact, in general its actions do not have any implications outside of the house of legislators" (the Makhoul Case, on page 343). Therefore, it was ruled that this Court's intervention in the decisions of the Ethics Committee should be in a more limited scope than the scope of intervention in the activity of other quasi-judicial entities in the Knesset (see: ibid). This reflects the Ethics Committee's broad scope of discretion, when handling matters of ethics and discipline of members of Knesset. The Court may intervene when the Ethics Committee's decision was reached in violation of law, or when at hand are material matters such as a violation of basic constitutional rights, the right to due process or violation of the  principles of natural  justice (see: the Legal Forum A Case, paragraph 6 of my judgment; the Legal Forum B Case, paragraph 22 of Justice A. Procaccia's judgment). In general, "[…] the more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the  actions deviates from the proper extent, this more this Court will be willing to intervene" (the Makhoul Case, on page 344).

 

38.          As mentioned above, the Ethics Committee ruled that the Petitioner's remarks, in light of their content and sensitive timing, do not coincide with the best interest of the State and severely prejudice the public's trust in the Knesset and its image. Hence, the Ethics Committee ruled that the Petitioner's remarks violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. For the sake of clarity, I shall requote these Rules verbatim:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4)          Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

The language of Rules 1A(2) and 1A(4) is broad and leaves room for the Ethics

 

 

 

Committee's discretion regarding the manner of their application in specific cases. Such application must be in accordance with the objectives underlying these Rules. The Rules of Ethics reflect the principle that a member of Knesset, as an elected official, is also a trustee of the public. As such, he must make the public interest a higher priority compared to his personal matters. This also leads to the need to preserve the public's trust in the Knesset, and the Rules of Ethics are a means to realize this trust (On the importance of public trust in governmental authorities in general, see HCJ 6163/92 Eisenberg v. The Minister of Construction and Housing, PD 47(2), 229 (1993); and also see: HCJ 4921/13 OMETZ – Citizens for Good Governance and Social Justice v. The Mayor of Ramat Hasharon (October 14, 2013)).

 

39.          It is, therefore, my opinion that the committee's conclusions did not deviate from the broad range of discretion granted to it. The Petitioner's statements in the Interview and the Article were interpreted as a support of terror and the killing of civilians. In the case at hand it is not criticism of the government's policy during wartimes that is at issue and not even criticism of legislation in the Knesset or of other political maneuvers of the majority. The severity of the matter is enhanced considering the timing of the Petitioner's remarks, just a few days after the abduction of the teenagers, at a time when their fate was unknown, and in the midst of the "Protective Edge" operation. Additionally, the cumulative effect of the Petitioner's remarks, which were published in proximity to each other, must also be taken into consideration. Considering all of the circumstances of the current case – the Petitioner has gone too far. The Ethics Committee ruled that the Petitioner's statements amount to "legitimizing acts of terror against the citizens of the State", and that this is a violation of the Rules of Ethics. Indeed, words of support of terror of any kind, from either side, could severely prejudice the public's trust in the Knesset and its image. Therefore, and taking into consideration the nature of the Petitioner's remarks and their timing, it is inappropriate to intervene in the committee's conclusions that the Petitioner's statements severely harm the public's trust in the Knesset and its image, and violate Rule 1A(4) of the Rules of Ethics. The committee further ruled that the Petitioner's remarks violate rule 1A(2) of the Rules of Ethics that, inter alia, provides that a member of Knesset shall act to advance the State's best interest. It appears that the main objective of this rule is to guarantee that members of Knesset will act for the sake of the public interest, and shall not take advantage of their status and authorities for the sake of personal matters. In the case at hand, prima facie, the Petitioner's remarks were not intended to promote her personal affairs. Notwithstanding, it appears that both extreme remarks and actions which legitimize acts of terror against the citizens of the State do not coincide with the State's best interest (compare: the Miari Case, on pages 226-227). The Petitioners themselves agreed that statements that encourage and support violence are not legitimate. In support thereof, both in the Petition and in the hearing before us, the Petitioners provided a series of "explanations" of the Petitioner's remarks, and asked that we not perceive them as supporting terror. With respect to the Petitioner's statements regarding the abductors of the teenagers

– "they are not terrorists" – it was explained that the Petitioner's principle position is not to use the term "terror" in Israeli media. Since, according to her, the term "terror" is used in Israeli media only to describe Palestinian violence and not to describe Israeli violence against the Palestinian population. As to the Petitioner's Article, the Petitioner's intention when calling upon the Palestinians to turn to

 

 

 

"popular resistance" and to impose a "siege" on Israel, which was interpreted by the Ethics Committee as supporting a violent uprising against the State of Israel, was not explained in the Petition. In his oral arguments before us, the Petitioner's attorney explained that the Petitioner's intention in her Article was to encourage non-violent civil Palestinian resistance, and to express support for a "political siege" on Israel. In response to our questions, the Petitioner's attorney even stated that if the Petitioner's intention was to support a military siege, this would be problematic. However, these explanations were given retroactively, by the Petitioner's attorney, and not by the Petitioner herself. The Petitioner did not provide them to the Ethics Committee in her filed response and not even to the Knesset plenum in her appeal. It would have been appropriate for the Petitioner's explanations to be given in the framework of her response to the complaint that was filed to the Ethics Committee, and at least in the framework of her appeal of the committee's decision (compare: the Makhoul Case, on page 344). In any event, these explanations – which as mentioned were only given retroactively – are not sufficient to justify our intervention in the Ethics Committee's decision. The Petitioner's remarks were not published in the media with explanatory notes. The spirit of the statements, despite the Petitioner's later reservations, is that of identification with acts of terror and support of violence, as a means of attaining political objectives. In my opinion, in these circumstances it is inappropriate to rule that the Ethics Committee's decision that the Petitioner violated the Rules of Ethics was flawed in a manner that justifies our intervention. I shall clarify that this judgment only addresses the violation of the Rules of Ethics by the Petitioner, and no other matter.

 

40.          The Petitioners requested that we intervene in the sanction that was imposed upon the Petitioner, due to it being, according to them, discriminatory and disproportionate. We have ruled, by a majority of opinions, that such intervention is inappropriate in the circumstances at hand. I elaborated above on the fact that the Ethics Committee has broad discretion, and this is true also with regard to prescribing the sanction. However, the committee's broad authority is not to be interpreted as a permit to impose arbitrary sanctions. When imposing a sanction due to the violation of the Rules of Ethics, the Ethics Committee must take a variety of considerations into consideration. In general, the sanction imposed must be proportionate to the severity of the ethical offense committed by the member of Knesset (see: the Makhoul Case, on page 344). Subsequently, the committee must take the severity of the offense and the circumstances in which it was committed into consideration. As to remarks by members of Knesset, their content, subject matter and timing must, inter alia, be taken into consideration. A remark that slanders or humiliates individuals and publics does not carry  the  same consequence as another extraordinary and extreme remark (see also in this matter: the Ethics Committee's Decision "In the Matter of the Amendment of the Knesset Members Immunity, Rights and Duties Law, 5711-1951" (June 24, 2002)). Among all of its considerations, the Ethics Committee must also include the circumstances of the concrete member of Knesset who is being judged thereby, including the question whether he expressed remorse for his actions and his entire disciplinary past (for Ethics Committee decisions in which such considerations were considered, see, for example: The Knesset's Ethics Committee's Decision "In the Matter of Ziv Price, Eliezer Dvir and Pinchas Wolf against Knesset Members Ahmad Tibi, Taleb el-Sana and Jamal Zahalka" (June 22, 2004) (hereinafter: the

 

 

 

"Decision in the Matter of Knesset Members Tibi, el-Sana and Zahalka"); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Limor Livnat, Minister of Education, Culture and Sport against Knesset Member Issam Makhoul" (December 21, 2004); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 19, 2005); the Knesset's Ethics Committee's Decision "In the Matter of the Complaints of Knesset Member Arie Eldad and Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 26, 2005); the Makhoul Case, on page 344; and compare to Decision 64/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Danny Danon against Knesset Member Hanin Zoabi" (January 3, 2012) (hereinafter: "Decision 64/18")). It must also take the punishing standard in similar cases into consideration.

 

And From These General Principles – To the Case at Hand.

 

41.          In the circumstances at hand, we have not found it appropriate to intervene in the sanction that was imposed upon the Petitioner. The Ethics Committee has a broad range of proportionality and the Petitioner's remarks are especially severe, particularly – considering their timing. The severity of the statements is also reflected in the Attorney General's decision in the Petitioner's matter. While the Attorney General did not find justification to open a criminal investigation in this case, he did find it appropriate to state that his decision does not prevent taking actions against the Petitioner at an administrative or ethical level (also compare with: the Sufrin Case, on page 188). The Ethics Committee also took the impact of the decision and its accompanying sanction on the Petitioner's freedom of expression into consideration among the entire considerations, and emphasized the importance of the right to publicly criticize the government during times of war. The Ethics Committee indeed weighed relevant considerations from every direction, which were reflected in the reasoned decision. The Petitioner was given the right to be heard both before the committee and before the Knesset plenum, in the framework of her appeal. In addition, according to the data on the Knesset's website, the decision to reject the Petitioner's appeal was adopted by a significant majority, which also included members of Knesset from the opposition, and on the other hand, one of the members of Knesset from the coalition voted in favor of accepting the Petitioner's appeal. The proceeding in the case at hand was conducted while maintaining the Petitioner's procedural rights. The Petitioner's conduct during the procedure created the impression that she did not take it seriously. As mentioned, some of her explanations were first presented during oral arguments before us, by her attorney and not by her.

 

42.          Indeed the sanction that was imposed upon the Petitioner – being removed from sessions of the Knesset's plenum and its committees for the maximum possible period of time – is the most severe sanction in the existing scale of penalties. There was no dispute that this sanction had never in the past been imposed for the maximum period of time prescribed in the Immunity Law. However, in the circumstances of the case, the Petitioners' argument of discrimination and lack of proportionality, cannot be accepted. This is not the first time that the committee attributes significant severity to such remarks, remarks that encourage acts of terror or violence (see: the Decision regarding the "Martyrs Day", the Decision

 

 

 

regarding Supporting the Intifada). At the ethical level – which is meant, inter alia, to preserve the public's trust in the Knesset – remarks that express support of terror or violence against citizens, are no less serious than threats or slander that are directed at a specific sector or person. In this context it shall be noted that the majority of the decisions that were quoted in the Petition do not address remarks of this kind, and in any event not remarks during times of war or terror events. I have not ignored the judgments in the above-mentioned Szel Case and Karacsony Case, in which the European Court of Human Rights addressed fines that were imposed on opposition members of Parliament in Hungary, due to unethical conduct during sessions in parliament. At issue there, were acts of protest against a controversial bill (in the Szel Case) and acts of protest against the conduct of the majority party (in the Karacsony Case). These acts of protest included, inter alia, waving signs. The European Court ruled that indeed the fines that were imposed infringed the members of Parliament's right to freedom of expression in a disproportionate manner and ordered that they be cancelled; however the remarks in these cases are less severe than in the case before us. The Ethics Committee indeed has never before imposed a penalty of removal for the duration of six months, but penalties of this kind had been imposed for shorter periods of time – both for remarks and for actions (see, for example: Decision 7/19 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Meir Porush" (November 13, 2013) (removal from Knesset plenum sessions for two weeks); Decision 66/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Anastasia Michaeli" (January 10, 2012) (removal from sessions of the Knesset plenum and its committees for a month); The Decision in the Matter of Knesset Member Eldad (removal from sessions of the Knesset plenum and its committees for one day); The Decision in the Matter of Knesset Member Tibi, el-Sana and Zahalka (removal from sessions of the Knesset plenum and its committees for two days)). An examination of the Petitioner's entire disciplinary past indicates that her remarks have been discussed by the Ethics Committee many times. In some of the cases it was found that she did not violate the Rules of Ethics or that it is inappropriate to impose a sanction for her remarks, and in some of the cases various penalties were imposed upon her (see, for example: Decision 64/18; Decision 55/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Hanin Zoabi due to her Participation in the Flotilla to Gaza in May, 2010" (July 18, 2011); Decision 52/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Legal Forum for Israel against Knesset Members Hanin Zoabi and Jamal Zahalka" (July 5, 2011)). I shall at this point note that in my opinion no weight should be attributed to the mere filing of complaints against a member of Knesset, as in the case at hand. According to the law, any person may file a complaint against a member of Knesset (Section 1of the Knesset Members Ethics Procedure (Complaints)). Many complaints are not accepted and many are dismissed in limine. Granting weight to complaints that were filed – even if they were not found to have any substance – could lead to abuse of this tool and to unjustified harm to members of Knesset. However, this consideration did not receive significant weight in the decision which is the subject of our discussion.

 

43.          I shall not deny that I was concerned by the "quantum leap" in the sanction that was imposed in this case. As may be recalled, the sanction of removal was added

 

 

 

to the Immunity Law in 2002, and as such, in general, should be imposed gradually (see and compare: Criminal Appeal 1042/03 Meretzplas Limited Partnership Ltd. (1974) v. The State of Israel PD 58(1) 721, 731-732 (2003); Criminal Appeal 7936/13 Levy v. The State of Israel, paragraph 46 of Justice N. Solberg's judgment, paragraph 2 of my judgment (December 16, 2014)). However, from a practical perspective, we are not dealing in this case with the Petitioner's complete removal from the Knesset's activity for six months. The summer recess, during which the Knesset operates in a limited format, took place during the first half of the removal. During the recess the Knesset plenum convenes only in extraordinary cases and Knesset committees also convene less frequently. As such, during the recess the two committees in which the Petitioner is a member convened only five times (but it shall be noted that meetings of other committees were also held), while according to the Knesset's website, during the month of November, these committees held more than twenty meetings. Furthermore, there was an elections recess during the seven weeks that remained of the period of removal, from the time of the hearing before us that was held on December 9, 2014, and the judgment that was given the following day. Therefore, the practical significance of intervening in the sanction in these circumstances is miniscule, if at all existent. I shall emphasize that in any event, the Petitioner's right to vote was not denied, and furthermore, that the sanction does not prevent the Petitioner from using parliamentary tools, such as filing bills, proposals or questions. At issue also is not a suspension from the Knesset (compare: the Flatto Sharon Case, on page 126). Considering all of the reasons mentioned above, I have not found justification for our intervention in the broad discretion granted to the Ethics Committee.

 

44.          Epilogue: The Petition is denied without an order for expenses, as stated in our judgment dated December 10, 2014.

 

The President

 

Justice E. Hayut

 

1.            I concur with the opinion of my colleague the President, both with regard to the question of the Ethics Committee's authority to impose sanctions against the Petitioner for the remarks which are the subject of the Petition and with regard to the conclusion that the authority in the circumstances at hand was exercised lawfully. I also share my colleague's remarks (paragraph 43 of her opinion) regarding the excessive severity of the sanction that was exercised in the case at hand. However, like my colleague, I am of the opinion that it is inappropriate to intervene since in the case at hand the severity of the sanction has de facto been mitigated to a considerable degree, given the fact that the majority thereof occurred during the summer recess – and this was taken into consideration by the committee – and during the election recess – even though this was not known at the time the sanction was imposed.

 

Due to the matters that emerged in this Petition, the importance of which cannot be overstated, I have found it appropriate to add two short comments: one – relates to not exposing the minutes of the Ethics Committee and the material presented thereto to be reviewed by the Petitioner despite her request in this

 

 

 

matter, and the second – relates to limiting the freedom of political expression of an elected official who represents a minority group in society.

 

The  Refusal  to  Deliver  the  Minutes  of  the  Committee  and  the  Material Presented thereto to the Petitioner's Review

 

2.            My colleague elaborated in her opinion on the fact that the Petitioner approached the Ethics Committee and requested, "in order to file a petition to the High Court of Justice", to review the minutes of its meetings and the material presented thereto in preparation for it reaching a decision, but was refused. The Knesset's legal counsel reasoned the refusal by referring to Rule 21 of the Rules of Ethics for Members of Knesset, which provides that the ethics proceedings, including the documents and the minutes, are privileged, and are not to be published except with the committee's written permission, and subject to the terms it shall prescribe. The legal counsel further stated in his response to the Petitioner that while the use of material and minutes of the committee's meetings for the purpose of legal proceedings is one of the exceptions the committee recognizes in this context, it is his position that this should not include a legal proceeding that is meant to challenge the decision of the Ethics Committee itself, due to the concern that this could adversely affect the committee members' ability to properly fulfill their duties. Finally, the legal counsel stated in his response to the Petitioner that if the Petition shall be filed, the minutes of the committee's session shall be delivered for the Court's review only. And indeed, immediately following the filing of the Petition, the Respondents delivered the minutes of the committee's session, in a sealed envelope to be reviewed only by the members of the bench.

 

During the hearing that was held before us on December 9, 2014, the Petitioners' attorney informed us that in order to make the hearing more efficient and to move it forward, he does not insist on the arguments he raised in the Petition regarding the refusal to provide him with the minutes of the committee's session and the material that had been presented thereto, while reserving his arguments in this matter. As such, my colleague did not find it necessary to refer to this matter in her opinion. Without setting rules in the matter, I find it appropriate to note that in my opinion the Knesset legal counsel's  reasons for refusing to make the minutes of the committee's session and the material that had been presented thereto available to the Petitioner, create non-negligible difficulties, in light of the distinction he made between general legal proceedings and legal proceedings that are intended to challenge the disciplinary decision that was adopted by the committee. It appears to me that not making the minutes and the material available to the Petitioner in these circumstances significantly impairs her ability to effectively challenge the decision and therefore it appears to me that the position presented by the Knesset's legal counsel in this context should be reexamined. This Court has elaborated in the past on the intensity of an individual's interest to receive detailed information  regarding a proceeding – disciplinary or other – in which a decision regarding him has been reached, especially in the context of a judicial proceeding against which he wishes to take action, so as to allow him to exercise his right to due process. In HCJ 844/06 Haifa University v. Oz (May 14, 2008) it was ruled in this context as follows:

 

"Whatever the extent of concern that the functioning of the

 

 

 

university examination committees will be impaired, that concern is subordinated to the need to allow the employees who were harmed by the conclusions of these committees to defend themselves against that which was attributed to them and to prove their argument that the decision regarding them was not lawfully adopted… The underlying rationale of this approach is that there is a significant social interest in giving the employees the possibility of exhausting their rights, and the interest of the efficient functionality and existence of such examination committees, however important it may be, does not in and of itself justify recognizing the material as privileged. This is certainly relevant when, as in the case at hand, there was a proceeding before a judicial instance which is addressing a question of the legal validity of the petitioner's decisions regarding changing the terms of employment of respondent 1 and terminating the employment of respondents 2 and 3. In this context, the interest that exists that the said examination committees be efficiently functional is subordinated to the respondents' right to due legal process, in the framework of which they shall be granted the possibility of reviewing all of the material relevant to establishing the arguments against terminating their employment in the School of Theatre" (the Oz Case, paragraph 18, see also: Permission for Civil Appeal 7568/00 The State of Israel – Civil Aviation Administration v. Aharoni, PD 55(5) 561, 565

(2001)).

 

It is my position that the intensity of this interest is certainly not weakened when at hand is a disciplinary proceeding that is being taken against a member of Knesset, and in this context it is not superfluous to add that the proper balance between the need to preserve the proper functionality of the Ethics Committee – the importance of which was elaborated upon in the Knesset's legal counsel's response – and the Petitioner's right to due process, can be obtained by way of stipulating terms and preventing the exposure of certain details, for example with regard to the identity of the speakers in appropriate cases, as per the committee's authority pursuant to the end of Rule 21 (see and compare: HCJ 7793/05 Bar- Ilan University v. The National Labor Court in Jerusalem, paragraph 20 (January 31, 2011); Administrative Petition Appeal 6013/04 The State of Israel

– Ministry of Transportation v. The Israel News Company Ltd. PD 60(4) 60, 96 (2006)). In any event, once the Petitioners did not insist on their argument in this matter, then, as my colleague chose, the ruling on this matter can be left for another time.

 

 

 

Limiting  the  Freedom  of  Political  Expression  of  an  Elected  Official  who Represents a Minority Group in Society

 

3.            In her opinion, my colleague elaborated on the distinguished and special status of the freedom of political expression in the order of constitutional rights, particularly when at hand is a member of Knesset who represents a minority group. This position is grounded in the past rulings of this Court, in HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336-338 (2006), and in the ruling of the European Court of Human Rights (Szel v. Hungary, 44357/13 (2014) at para 69; Karacsony v. Hungary, 42461/13 (2014) at para 72) to which my colleague referred. See also Tarlach Eoghan McGonagle, Minority Rights and Freedom of Expression: A Dynamic Interface (PhD Thesis, University of Amsterdam, 2008) for the special importance of protecting the freedom of expression of minority groups, in general, and the duty imposed on the state to restrain the infringement of this freedom of expression and to take measures to allow it to be realized.

 

However, the attempt to define what a "minority group" is, is not always an easy task (see and compare for example: Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel 1, 42 (January 12, 2015). Available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2548548; Civil Appeal 466/83 Shahe Ajemian, Archbishop in the Armenian Church in Jerusalem v. Archbishop Yeghishe Derderian, PD 39(4) 737, 747 (1986)), and it should also be noted that at times there can be situations in which it appears that it is actually the freedom of expression or other freedoms of the majority that are at risk and need steadfast protection against being infringed upon by certain minority groups. In any event, the freedom of political expression of an elected official, as well as an elected official who represents a minority group, is not absolute, but rather, as any other constitutional right, is relative, and it is not a freedom that is free of any limitations whatsoever. Like my colleague, I am of the opinion that in the case at hand, the Petitioner's remarks crossed the line and exited the zone worthy of protection in the name of freedom of political expression, even considering the fact that she represents a minority group in Israeli society. The Petitioner's statements in the Interview, regarding the abduction of the teenagers, reflect understanding and legitimization of the atrocious act of abduction, and identify with those who committed the act, whom, according to her, should not be referred to as "terrorists". The words the Petitioner wrote in the Article that was published on various websites are no less severe from the perspective of the Rules of Ethics that apply to someone who serves as a member of the Israeli Knesset. In that same Article, the Petitioner went so far as to hand out advice as to the effective ways in which it is possible to fight the State and to harm it. Inter alia, it was written in said Article: "We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith". These words, when voiced by a person who is a member of the Israeli Knesset, justify the steps taken by the Ethics Committee, because they illustrate that what the Petitioner had in mind when writing that Article was neither "the advancement of society and the best interest of the State" nor "fostering public trust in the Knesset". The Petitioner advocates to cease the coordination and the

 

 

 

negotiations between Israel and the Palestinians, which according to her are nothing but part of what she refers to as the "lethal trinity" and instead of negotiations and coordination she calls for popular resistance and imposing a siege on Israel. The Petitioner's attorney's attempt to retroactively argue that this is not a call for violence, is perplexing, inter alia, given the manner the term "popular resistance" is de facto implemented in the reality of our lives.

 

It is important to emphasize that remarks, and particularly remarks by elected officials, which constitute criticism and even extremely harsh criticism, of government policy are completely legitimate, and this is true with respect to remarks that emphasize the suffering of the other party to a conflict and which exhibit empathy towards and understanding of such suffering. This Court elaborated on this in the early days of the State, when stating that the difference between an autocratic regime and a democratic regime is marked by the possibility that is granted to the representatives chosen by the people to scrutinize the acts of government at any time "Whether to cause such acts to be rectified and create new arrangements in the State, or to bring about the immediate termination of those 'governing' or their replacement by others when comes the elections" (HCJ 73/53 'Kol Ha'am' Company Ltd. v. The Minister of Interior PD 7(1) 871, 876 (1953)). However, as mentioned, the Petitioner's remarks, for which the Ethics Committee deemed it appropriate to apply sanctions against her, completely deviated from this legitimate category, even if one takes into consideration the special caution that must be  applied  when dealing with the freedom of political expression of an elected official who represents a minority group.

 

4.            My colleagues emphasized the excessive severity that accompanies  the Petitioner's remarks given that they were made during times of war and crisis. I am of the opinion that it is inappropriate to set different criteria for the protection of the freedom of expression during times of crisis compared to those that should be applied during times of calm. However, it is clear that the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis. President A. Barak elaborated on this in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), when he stated that:

 

"Indeed, Israeli constitutional law has a uniform approach to human rights during times of relative calm and during times of enhanced war. We do not recognize a sharp distinction between the two. We do not have special balancing laws for times of war. Of course, human rights are not absolute. They can be limited during times of calm and times of war… During times of war the likelihood that damage to a public interest shall occur is greater, and the harm to the public interest is more intense, and as such it is possible to limit rights in the framework of the existing criteria… Indeed we do not maintain two systems of rules or balances, one for times of calm and other for times of terror. There is a uniform set of laws and balances, which applied both during times of calm and times of terror (the Adalah Case, paragraph 20; see

 

 

 

also: Abrams v. United States 250 U.S. 616, 627-628 (1919)).

 

Based on the grounds listed by my colleague the President, to which I added a few comments, I am of the opinion that the Petition is to be denied.

 

Justice

 

Deputy President E. Rubinstein

 

A.            I concur with the comprehensive reasons written by my colleague, the President.

 

B.            I shall add some brief remarks: Section 1(A1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 is somewhat of a mirror image of Section 7A of the Basic Law: The Knesset which was adopted a short while earlier and defines when a list or a candidate shall be prevented from participating in the elections to the Knesset.

 

C.            Section 7A of the Basic Law: The Knesset, which was adopted on the 4th of Iyar, 5762 (May 15, 2002) (Sefer Hachukim 5762, 410) prevents a party or a candidate from participating if their goals or actions "explicitly or implicitly include one of the following: (1) denial of the existence of the State of Israel as a Jewish and democratic state; (2) incitement to racism; (3) support of an armed struggle by an enemy state or of a terrorist organization against the State of Israel".

 

D.            Section 1(A1) of the Immunity Law which was adopted on the 13th of Av, 5762 (July 22, 2002) (Sefer Hachukim 5762, 504) excludes that which is listed below from the material immunity of Section 1(A1) of the law which addresses a vote, an expression of opinion or an act while fulfilling the position or for the sake thereof – and we shall already take note of the similarity to Section 7A of the Basic Law:

"(1) Denial of the existence of the State of Israel as the state of the Jewish people.

(2)          Denial of the democratic nature of the State;

(3)          Incitement to racism due to color or belonging to a race or ethnic national origin;

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs due to their being Jewish or Arab, in Israel or abroad."

 

E.            It is not necessary to conduct a meticulous comparison between Sections 1(A1) of the Immunity Law and 7A of the Basic Law in order to receive the impression that we are dealing with provisions that are comparable and correspond to each other. The legislators of Section 1(A1) had the model of the Basic Law before them; see the bill that was filed by Knesset Members Eliezer Cohen, Zvi Hendel, Michael Nudelman and Nissim Ze'ev, Hatzaot Chok 5762, 210, which explicitly addresses this. I shall note that I reviewed the discussions in the plenum in the first reading on January 29, 2002 (in the second and third readings on May 27, 2002, no real discussion was held) and the matters discussed were split between left and right; there was also a reservation to the bill by Minister Dan Meridor. In

 

 

 

any event, the amendment was legislated.

 

F.            In light of the above, it is clear that we are dealing with the core of the Israeli parliamentary duty to which the members of Knesset pledge allegiance pursuant to Section 15(a) of the Basic Law, as follows: "I pledge myself to bear allegiance to the State of Israel and faithfully to fulfill my mandate in the Knesset"; Knesset Member Zoabi also pledged this when declaring "I Pledge" (Section 1(c) of the Knesset Law, 5754-1994). We are not dealing with a marginal matter, but rather one which is undoubtedly at the root of being a member of Knesset; the legislators of Section 1(A1) of the Immunity Law – as mentioned – viewed the matters therein as drawing sustenance from Section 1A of the Basic Law. This Court applied a very restrained approach in the context of Knesset Member Zoabi's candidacy to the Knesset with regard to her compliance with the terms of Section 7A of the Basic Law: The Knesset. Until now an extremely lenient approach was preferred with respect to her, and I shall only mention Election Approval 9255/12 The Central Election Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment dated December 12, 2012, reasons dated August 30, 2013); where President Grunis spoke (in paragraph 34) of Knesset Member Zoabi's activity which "comes very close to the grey area of which Section 7A warns and which it is meant to prevent", and of evidence that came close "to that 'critical mass' of evidence that justifies disqualification" – but the line was not crossed. Additional justices on the bench in that judgment expressed a similar spirit, but the judicial policy of narrowly and stringently interpreting the causes in Section 7A of the Basic Law as being designated for "most extreme cases which cannot possibly be dealt with using ordinary democratic tools" (paragraph 35), was upheld. In the context of the elections, a non-excluding approach was preferred, and subsequently the judicial and democratic tolerance was flexed to its limits. I mention this because ultimately the legal significance is that once Knesset Member Zoabi was elected to the Knesset and pledged allegiance to the State, she is in her position by right and not by grace; see Nathan Alterman's unforgettable poem "The Rebuke to Tawfik Toubi" (The Seventh Column A 276) of the 1950's (also quoted in my article "On Equality for Arabs in Israel" in my Netivei Mimshal UMishpat book (5763- 2003), 278), in which, inter alia, it was said "Such is the nature of democracy: Her servants owe gratitude to no person; In part it may not be easy, but if it shall not go without saying, it shall not be understood by us at all". Often the things that Knesset Member Zoabi says and does are not easy for many Israelis, but they are to be considered "the choosing of the lesser of two evils" (as the words of the Mecelle), and her parliamentary right is in place.

 

G.           We now approach the Rules of Ethics, which are an internal parliamentary layer, and in my opinion should be interpreted both based on their content and taking into consideration the general background of a member of Knesset's obligations, on the one hand, and his or her immunity and the exceptions thereto, on the other hand. Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, "a pressure release valve" to maintain a framework of parliamentary norms. My colleague listed the general values underlying the Rules of Ethics (in paragraph 23), and in the matter at hand, we are dealing with Rule 1A(2) which designates the member of Knesset as "a trustee of the public and it is his duty to represent the public that voted for

 

 

 

him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;" and with Rule 1A(4) pursuant to which the member of Knesset shall "preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset". Indeed, these rules address  fundamental values, but, similarly to my colleague (paragraph 32), I do not accept the argument that they do not have an independent standing; in my opinion they are the soul of the Rules of Ethics, they are what gives them their real essence and their proper application.

 

H.            As my colleague mentioned (paragraph 26), the parties to this Petition assumed that the Petitioner's remarks which are the subject of the complaints are covered by the material immunity by virtue of Section 1(a) of the Immunity Law, which – as mentioned – grants immunity "due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset". I shall take the liberty to doubt whether Knesset Member Zoabi's words which we are addressing meet the criteria of Section 1(A1)(4) which excludes "support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad." However, even with the lenient assumption that my colleague described, it is clear that there is nothing preventing discussing Knesset Member Zoabi's remarks at an ethical level.

 

I.             We shall briefly review the actual remarks.

 

J.             First of all, the interview on June 17, 2014, five days after the abduction of the three teenagers Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may G-d avenge their deaths. According to Knesset Member Zoabi, the abductors, the abductors of innocent teenagers, "are not terrorists… even if I do not agree with them, they are people who do not see any opening…, and they are forced to use these means". It is known that throughout the world and in international law there are disputes as to the definition of terror, and it has already been said that a freedom fighter for one is a terrorist for the other. But is there a humane human in their right mind who would not deem the abduction of the teenagers and their cold blooded killing anything other than terror? Must the national liberation for the Palestinians, for which Knesset Member Zoabi is wishing, pass through despicable crimes of terror? And the stretched explanation that was voiced, that her statements were said because terror is only attributed to Arabs and not to Jews cannot hold water, inter alia, because acts of terror by Jews are on more than one occasion referred to as "Jewish Terror", and an simple surfing on the internet with such headline will prove this. Terror is terror is terror, regardless of who performs it, Jews, Arabs or others. Hence, can it be said, in this case, that the value of a member of Knesset's duty to serve human dignity, as appears in Rule 1A(2), was not violated? – There is no greater human dignity than the sanctity of life itself; "There shall be no violation of the life, body or dignity of any person as such." (Section 2 of the Basic Law: Human Dignity and Liberty, and see also Section 4 of the Basic Law).

 

 

 

 

K.            Secondly, the call in the article dated July 13, 2014, to the Palestinians "… to impose a siege on Israel instead of negotiating therewith". These words should not be read as a sacred text with multiple interpretations, but given the context of the matters which is "(Israel's – E.R.) detestable trinity: the fence, the siege and the coordination", it is extremely difficult to interpret the call to "impose a siege on Israel" as only a "political siege" (not that such a call in and of itself would be permitted and legitimate), but rather as an armed siege. If we shall read these statements in light of the "State's best interest" chapter in Rule 1A(2) of the Rules of Ethics, we shall ask ourselves whether a call to impose a siege on the State can be in the "State's best interest" – and this is not a political slogan of "saving Israel from itself", which some of Israel's "friends" raised in the past, but, as my colleague stated, rather an unexplained statement – which simply means joining forces with the State's enemies. The answer cannot be positive; and the forced interpretation that was given, even though it was not from the member of Knesset but rather from those supporting her, is not convincing. In light of all of that stated above, one cannot cast a doubt regarding the violation of the Rule of Ethics.

 

L.             Indeed, Knesset Member Zoabi is from a minority in Israel – and it is appropriate to apply interpretation that takes this into consideration and expands the limits of patience and tolerance; but in the case at hand, as my colleague also stated (paragraph 39) it simply went too far. Of course, this is enhanced by the timing, during the search for the teenagers, while the sounds of the cries of the mothers and fathers were heard, and during severe combat – the member of Knesset was undermining any common ground that exists and should exist among the entire Israeli public, without any explanation which could, even at a stretch, be acceptable.

 

M.          One must not criticize the members of the Central Ethics Committee, who, when dealing with the ethical level, did not take the approach of those three monkeys who do not hear, do not see and do not speak, since at hand are the core and essence of principle, central ethical obligations. Therefore, I agree with  the rulings of my colleague, the Deputy President, for example in paragraphs 31-32, 35, 39, in the principle questions that were addressed here. At issue is not the matter of the limits of the freedom of expression, which the State of Israel maintains on a very high level, as emerges from the rulings of this Court – and I personally doubt whether the type of statements that underlie this case would even be acceptable in a country that maintains ultimate freedom of expression such as the United States, pursuant to the First Amendment of its constitution. The matter at hand is the ideological base that is – or should be – shared by all members of Knesset, and which in the absence thereof – there is no survivability. I shall re-emphasize that in my opinion one of the more burdening parts of the story, as also emerges from the words of my colleague, in addition to the statements themselves, is the explanations – or the lack thereof – with respect to the remarks; it is clear that Knesset Member Zoabi's explanations are extremely stretched, and her attorney had to, skillfully, try to fill voids, at times in an impossible manner, as is stated in the Bible: "Wilt thou put out the eyes of these men?" (Numbers, 16, 14).

 

 

 

N.           Finally, as to the sanction, which ultimately ended up being more in the symbolic dimension than one of essence or substance, since, as my colleague described, it was eroded between a recess and elections, and therefore it clearly had a weak impact.

 

O.           Upon reading the opinion of my colleague, Justice Hayut, in paragraph 2, regarding the delivery of the minutes of the Ethics Committee's session to the Petitioner, I shall request only to state that we are dealing with a very delicate balance, which is intended to protect the committee members' freedom to express themselves freely on the one hand, and fairness towards the injured member of Knesset, on the other hand. As my colleague mentioned, this matter has emerged in other contexts as well. The difficulty is that even when the exposure of certain details, such as the identity of the speakers, is prevented, it is easy to comprehend that the matter still remains complex, since in a small committee (as opposed, for example, to the other Knesset committees which are large), anyone who is able to figure things out will not have difficulty identifying the speakers. Since the matter remains to be further addressed, it does not have to be ruled upon now.

 

P.            Further to the remarks of my colleague, Justice Melcer, I shall concur with his statements regarding the relationship between law and ethics. It is known that ethical duties also apply to us as judges. The Jewish Law also addresses the distinction between ethics and the letter of the law, and as we – Judge Eran Shilo and myself – wrote in an article that is scheduled to be published in the Zvi Tal Book, "Judicial Ethics in Jewish Law", "The rules of ethics are rules that professionals took upon themselves, as opposed to the law – which is externally imposed upon them, as upon the entire public"; Furthermore – "The distinction between ethics and law is what allows the judge, in circumstances that justify it – to exercise discretion with respect to the norms that are prescribed, knowing that the letter of the law that guarantees a just trial shall not be prejudiced". In the case at hand, we are dealing with the legislator itself, who also prescribes the law and not only the rules of ethics, and therefore we can adjust that which is stated and say that the Rules of Ethics are directed internally, towards the sphere of parliamentary conduct, while the law that is legislated by the Knesset is directed externally, towards everyone. However the ethical matters in the Knesset are obviously uniquely public due to the institution's status and importance, and they are meant to draw behavioral lines so that the legislator shall know its own limits, not only through constitutional review but also within the boundaries of conduct that befits those who represent the entire Israeli public.

 

Q.           My colleague, Justice Melcer, addressed the pledge of allegiance, similarly to my words in paragraph F above. It is known that the wording of this declaration is defined and a member of Knesset is not permitted to add anything thereto (HCJ 400/87 Kahane v. The Chairperson of the Knesset PD 41(2) 729); The declaration (Section 15(a) of the Basic Law: The Knesset) addresses "Bearing allegiance to the State of Israel and faithfully fulfilling my mandate in the Knesset"; similarly, the President of the State is also required to "bear allegiance" (Section 9 of the Basic Law: The President), as are the Prime Minister and ministers (Section 14 of the Basic Law: The Government), judges (Section 6 of the Basic Law: The Judiciary – which was applied as early as in 5708 (my book The Judges of the Land (5741-1980), 79); religious judges (Section 10 of the

 

 

 

Religious Judges law, 5715-1955); Qadis (Section 7 of the Qadis Law, 5721- 1961), and Madhhab Qadis (Section 13 of the Druze Religious Courts Law, 5722-1963), as well as the State Comptroller, pursuant to Section 9 of the Basic Law: State Comptroller. In my opinion, by pledging this allegiance those filling these positions express the expectation of an extra degree of loyalty by any personality filling a governmental position, beyond the basic loyalty imposed by citizenship (see Section 5(c) of the Citizenship Law, 5712-1952, in which a person being naturalized pledges to be a "loyal citizen". The pledge of allegiance is a deep moral instrument, and as stated, is at the root of being a member of Knesset, and is a common thread that connects all holders of senior positions in the government system, in the framework of their mandate. One must either be a great believer or greatly naïve, to be of the opinion that Knesset Member Zoabi's statements which we are addressing here, constitute bearing allegiance.

 

R.            As to the position of my colleague, Justice Joubran: There is no dispute regarding the centrality of freedom of political expression  and the significance of the material parliamentary immunity, even what at issue is the expression of outrageous opinions. This is true for all and especially in the case of minorities from various sectors. This stems from us being a Jewish and democratic state, and from the legacy of the prophets of Israel, and as prophet Isaiah said (58, 1) "Cry aloud, spare not, lift up thy voice like a horn, and declare unto my people their transgression, and to the house of Jacob their sins."; see also the principle paragraph in the Declaration of Independence which establishes the State of Israel on "the foundations of freedom, justice and peace as envisaged by the prophets of Israel"; and Section 1 of The Foundations of Law Law, 5740-1980. My colleague is of the opinion (paragraph 17) that also when dealing with ethics it is necessary to apply restraint, and I especially agree when dealing with "politicians who are judging politicians", in the Knesset's Ethics Committee, when – without heaven forbid insulting anyone – there is an inherent concern regarding political considerations being involved in the material considerations. However, we are dealing with ethics in which severity of sanctions do not get to the root of the matter (and in the matter at hand has been wondrously eroded), and with a message which has already been described in the various opinions here.

 

S.            Where do I disagree with my close colleague Justice Joubran? In laying down the line. For example, my colleague (paragraph 19) distinguishes between one who "acted not for the advancement of the best interest of the State" and one who "did not act to advance the best interest of the State", and he is of the opinion that "neutral actions by members of Knesset which on the one hand do not advance the best interest of the State and on the other hand do not harm it, shall not be included in the prohibition". Even if such distinction is appropriate, and I shall not address this (but see the words of our colleague Justice Melcer, in paragraph 7), this is not what is at issue, since the words of Knesset Member Zoabi which we are addressing are blatantly not in the best interest of the State. According to Justice Joubran (paragraph 20), Section 1A(2) of the Rules of Ethics, which imposes upon a member of Knesset to act "in a manner that shall serve human dignity, the advancement of society and the best interest of the State", should be interpreted in a liberal manner, and its sanctions shall be limited to extreme cases. In my opinion, even in the most far reaching liberal interpretation, calling for the

 

 

 

imposition of a siege on your own state and supporting terror cannot – with all due respect – be interpreted with common sense and in the eyes of an ordinary person – as neutral, certainly not as an act "in the State's best interest". I am sorry, but this is nothing other than a blatant an act against the State's best interest. There are ethical boundaries and I shall not address the question of the boundaries of freedom of expression, and the manner of dealing with expressions that are not only provocative but tap existential roots.

 

T.            In summation: The (Middle) Eastern culture to which all of us, each sector, person and style, belong, attaches great importance to honor. Ethics is part of the values and manners between people. In the Jewish world this shall be referred to in various contexts as the theory of values (ethics). I shall quote statements that I had the opportunity to write in my article "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (5773-2013), 140. It is said there (on page 142) that "Mutual respect between Jews and Arabs in Israel is necessary. This is emphasized due to the importance that the culture surrounding us, the culture of the (Middle) East, attributes to the matter of honor, a culture that is expressed in words such as 'Sharaf (honor) and 'Kilmat Sharaf' (word of honor)" and hereinbelow (pages 143-144) "I myself perceive honoring my fellow-person, first and foremost as something natural that stems from within oneself, … this is also the case, mutatis mutandis, of course, with respect to matters related to the relations with Israeli Arabs within" and further on (page 145) "the principle prescription for relationships between the majority and minority in the State of Israel is complex – it is a matter of awareness and insights, which call for reciprocity. It includes Jewish insight as to the need for respect towards the Arabs and an ongoing, relentless, effort, to amend the gaps in equality in all spheres – as mentioned, I see myself as one of the first who was willing to stand up for the task of amending and bridging the gaps. However, awareness and insights are also necessary from the other side, among some of the Arab leadership  in Israel… it must recognize and understand that the objective of the struggle must be equality, and the Jewish population cannot be concerned that at hand is a struggle against the essence of the State of Israel as a Jewish and democratic state". Indeed, this was said in the context of the state being Jewish and democratic, but they  are  relevant also  when referring to terror.  When  three families and an entire country were worried about the fate of teenagers who had been abducted (and murdered) by evils, according to Knesset Member Zoabi, they are not terrorists, an ordinary person shall then ponder whether to accept her stretched explanations, and in my opinion the answer is crystal clear. This is also true with respect to the "siege sophistry", and no more words are needed.

 

Deputy President

 

Justice H. Melcer

 

1.            I concur with the exhaustive and measured judgment by my colleague, President

M. Naor.

 

However, due to the importance of the matters, I take the liberty to add a few words regarding the distinction between the prohibition of law and the prohibitions of ethics, since in the case before us the matter that emerged was

 

 

 

whether Knesset Member Hanin Zoabi violated the Rules of Ethics for Members of Knesset (hereinafter, also: the "Rules of Ethics") and whether judicial intervention in the sanctions that were imposed thereupon by the Knesset's Ethics Committee, is appropriate. I shall briefly address below the said distinction, and its derivatives and implications.

 

2.            Prof. Asa Kasher, in his article Professional Ethics (published in Ethical Issues for Professionals in Counseling and Psychotherapy, ed. Gaby Shefler, Yehudit Achmon, Gabriel Weil, pages 15-29 (Y"L Magnes – 5763-1993)) distinguishes between ethics and law using the terms of shelf and threshold, and clarifies that along the range of possible courses of actions:

 

"There appear to be two lines, one at the top of the ladder… even if not at its very top, and one at the bottom of the ladder… even if not at its very bottom. The top line shall be called the 'shelf'. In this picture it represents ethics. The bottom line shall be called the 'threshold'. In the current picture it represents the law.

These lines, the 'shelf' and the 'threshold' divide the entire range into three natural parts: the segment from the 'shelf' and upwards, the segment between the 'shelf' and the 'threshold' and the segment below the 'threshold'. It is important to understand the essence of each of these three segments, in order to properly understand the relationship between the world of ethics… and the world of law…

The 'shelf' represents the professional ethics, the practical ideal of professional conduct. It is the 'shelf' of proper conduct… an action at the height of the 'shelf' or above it is proper conduct, as it is conduct that is in accordance with the practical ideal of professional conduct. The segment from the 'shelf' upwards, within the range of possible courses of actions, is the proper sphere of conduct…

The 'threshold' represents the law…, the binding approach of legal conduct, the 'threshold' of permitted conduct pursuant to the law, from a legal perspective. An action at the height of the 'threshold' or beneath it constitutes… conduct that is contrary to the binding approach of legal conduct…

For the sake of accuracy, we shall mention a simple aspect of the relationship between the 'shelf' and the 'threshold', in this picture, which is not at all obvious in any context. In the picture proposed here, the 'shelf' is always higher than the 'threshold'. In reality, the relationship between a certain 'shelf' and a certain 'threshold' could, at times, be more complex… Between the 'shelf and the 'threshold' is the interim sphere. An action in this sphere constitutes improper conduct, from an ethical perspective, since it is under the said 'shelf', but it is  concurrently  deemed  a  permitted  action,  from  a  legal perspective, since it is above the said 'threshold'…"

(Ibid, on pages 23-24, original emphases – H.M)

 

 

 

Justice Yitzhak Zamir, who also dealt extensively with the distinction between law and ethics – added as follows in HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel PD 51(3) 46, on page 61 (1997):

 

"It is the law that determines the limit between law  and ethics. Furthermore, the law nibbles away at ethics. Rules of ethics can become rules of law. From time to time the legislator will prescribe this, and from time to time the courts will rule this, when it turns out that the power of ethics, in and of itself, does not prevent wrong behavior or severe consequences. In such an event, the law, on more than one occasion, will step in and help the ethics. See: Y. Zamir "Ethics in Politics" Mishpatim 14 (5747-5748) 250".

 

See also the opinion by Justice M. Cheshin in HCJ 1993/03 The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, PD 57(6) 817, on pages 917-918 (2003).

 

3.            In the Petition before us – we are not dealing with the legal sphere which, for example, prescribes in Section 7A of the Basic Law: The Knesset terms and conditions that allow preventing a list of candidates from participating in, or a person from being a candidate for, elections to the Knesset. This is the threshold and as such, its interpretation and application are exercised narrowly and its judicial review is meticulous.

 

See: Election Approval 9255/12 The Central Elections Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment from December 30, 2012; reasons from August 30, 2013, and review the references mentioned therein).

 

4.            The Petition here addresses a different matter, since it focusses on the rules of conduct that apply to a person who was elected to serve as a member of Knesset. These bind the member of Knesset by virtue of Sections 13D and E of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Knesset Members Immunity Law"). These Rules of Ethics demand that a member of Knesset behave as expected of an elected official presiding in the Knesset, which is the "State's House of Representatives" (Section 1 of the Basic Law: The Knesset). This is the threshold. The said threshold leans on two supporting beams:

 

(a)          The pledge of allegiance, which the member of Knesset declares by virtue of Sections 15 of the Basic Law: The Knesset and Section 1(c) of the Knesset Law, 5754-1994, and on this matter I concur with the position of my colleague, the Deputy President, Justice E. Rubinstein.

 

(b) The Rules of Ethics of the "House of Representatives"

 

I shall address each of the two said sources separately below:

 

 

 

 

Pledge of Allegiance

 

5.            Since the dawn of political thought and democratic history the pledge of allegiance has had more than just ceremonial meaning, but also deep substantial relevance. Indeed, as early as in ancient Greece, the governors in the Police were required to swear their allegiance to the unification of the state, and Plato, the reputed jurist of such time, in his book: Laws (Volumes III 685 and XII 960) wrote that the pledge of allegiance has both legal significance and political importance. Aristotle, in his book: Politics (Volume III, 1285) analyzed the meaning of the pledge of allegiance as a means of securing the rule of law. See: Matthew A. Paully, I Do Solemnly Swear: The President's Constitutional Oath: Its Meaning and Importance in the History of Oaths (1999) ibid, on pages 45-52. See also: Suzie Navot "The Knesset Chapter on the Constitution Draft: Three Remarks" Mishpat U'mimshal 10 593, 624-633 (the chapter on the status of the pledge of allegiance) (5767) (hereinafter: "Navot on the Status of Pledge of Allegiance"); Yigal Marzel "On a Judge's Pledge of Allegiance" Orr Book 647 (5773-2013; hereinafter: "Marzel on the Pledge of Allegiance").

 

Therefore, anyone who crossed the threshold and his/her candidacy was approved and he/she was elected to the Knesset, must still declare allegiance in order to actually take the position, This is the significance of the pledge of allegiance, in the framework of which the member of Knesset undertakes:

 

"To bear allegiance to the State of Israel and to faithfully fulfill his mandate in the Knesset".

 

It indeed turns out that while candidates to the Knesset must first cross the threshold and after they are elected they must represent their voters – those who sent them and their party – still the common denominator for all members of Knesset is the pledge of allegiance from which the shelf is derived. If the pledge, which has a uniform wording for all members of Knesset, and which cannot be deviated from in any way – is not made, the members of Knesset cannot function in the Knesset (see: Section 16 of the Basic Law: The Knesset; HCJ 400/87 Kahane v. The Chairperson of the Knesset, PD 41(2) 929 (1987); see also: Marzel on the Pledge of Allegiance page 651 and 664-665).

 

Comparative law further demonstrates that not only is a person who is not willing to pledge allegiance not entitled to benefit from his rights in parliament, but that the "house" may deny, or de facto limit the rights and actions in parliament of a person who violates his said pledge. Compare: McGuinness v. The United Kingdom, case no. 39511/98 ECHR (1999); Spanish Constitutional Court decisions: number 101 dated November 18, 1983; number 122 dated December

16, 1983, number 8 dated January 25, 1985; number 119 dated June 21, 1990, and number 74 dated April 8, 1991. See: Navot on the Status of the Pledge of Allegiance, on pages 628-631 and see Prof. Aparicio Perez' article that is mentioned in Prof. Suzie Navot's said article, in the framework of which the following was written (free translation from Spanish by Prof. Navot):

 

"The member of parliament benefits from a dual status: the

 

 

 

one which derives from his status as an elected person and a representative, since his status stems from the fact that he was elected by the public in the framework of his party: and that of a member in a representative organ. The fact that a member of parliament is "elected" does not automatically grant him the rights in the representative organ, meaning, the parliament… This duality is possible. In certain cases, the parliament may, by virtue of its internal arrangements, even take away the mandate a member of parliament received and remove him. The fact that a person was elected as a member of parliament is a condition for him to participate in the common organ referred to as the parliament. However, in order to be included in this organ, the elected person must fulfill the material conditions to be included in this organ. Only after the member of Parliament has fulfilled these terms, can he be considered a 'parliamentarian'…"

 

It is appropriate to add here that both the European Court of Human Rights and the Spanish Constitutional Court denied judicial intervention in decisions that limited parliamentary participation from those who refused to pledge allegiance, and ruled that even the right to vote in parliament (which was not denied from Knesset Member Zoabi in this case) may be limited, provided that the prevention is meant to attain a proper goal and is proportionate. See: Navot on the Status of the Pledge of Allegiance, on page 630. With respect to the applicability of the proportionality criteria in the context of immunity and the denial thereof – also compare with that stated in the judgment in Cordova v. Italy (No. 1 and No. 2), Application no. 40877/98 and Application no. 45649/99, which was given by the European Court of Human Rights (dated April 30, 2003).

 

Rules of Ethics for Members of Knesset

 

6.            These are relevant to the matter at hand, since in the framework of Section 1A thereof they further anchored general values that apply to the member of Knesset. In the framework of these rules – the member of Knesset must (inter alia):

 

(1)          Fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic State;

(2)          Act as a trustee of the public, and fulfill his duty to represent the public that voted for him in a manner that will serve human dignity, the advancement of society and the best interest of the State;

(3)          Diligently uphold the laws of the State of Israel and act to advance the principle of the rule of law;

(4)          Preserve the dignity of the Knesset and the dignity of its members, be devoted to fulfilling his duties in the Knesset, conduct himself in a manner that befits his status as a member of Knesset, and act to foster public trust in the Knesset;

(5)          Fulfill his mandate in the Knesset responsibly, honestly and fairly, out of dedication to his status as a leader in society, and strive to serve as a personal example for proper behavior;

 

 

 

(My emphases – H.M.)

 

As to the "dignity of the Knesset", Section 2 of the Rules of Ethics provides that: "The member of Knesset shall uphold the dignity of the Knesset and the dignity of its members, shall act in a manner befitting his status and duties as a member of Knesset, and shall avoid using his immunities and rights as a member of Knesset in an improper manner" (My emphases – H.M.)

 

7.            In light of Knesset Member Zoabi's conduct which was the subject of the complaints that were filed against her – it can certainly be said, as was ruled in the decisions which are the subject of the Petition, that she violated Section 1A of the Rules of Ethics for Members of Knesset, and particularly the provisions of the above sub-sections (2) and (4) of the said Rules, since, according to my position, she was not diligent about maintaining allegiance to the State (see: Yaffa Zilbershats, Loyalty to the State, Zamir Book, 491 (2005); Marzel on the Pledge of Allegiance 669-673). These violations were reflected in the "understanding" Knesset Member Zoabi exhibited towards the acts of the abductors of the teenagers: Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may their memories be blessed, and in her calls to impose a siege upon Israel. In doing so she not only ethically violated her fiduciary duty towards the State of Israel, but also prejudiced her status as a trustee of the public, who is meant to act in a manner that shall serve the advancement of the best interest of the State (sub-section 1A(2) above). She also deviated from her obligation as one who is required to uphold the dignity of the Knesset and act in a manner that befits her status as a member of Knesset, and to act to foster the public's trust in the Knesset (above sub-section 1A(4)). See: Suzie Navot "The Member of Knesset as a 'Trustee of the Public'" Mishpatim 31(2) 433 (particularly ibid, on pages 518-

520) (5761). In this context my colleague, Justice S. Joubran states that in his opinion an ethics violation is possible "when a member of Knesset acts not for the advancement of the best interest of the State, as opposed to a situation in which he did not act to advance its best interest" (original emphases – H.M.) I am willing to accept this interpretation, however, even according thereto – Knesset Member Zoabi's conviction of an ethical offense is not to be cancelled. Calling for a siege on the State of Israel is explicitly an act not for the advancement of the best interest of the State and here we must clarify that for this purpose it makes no difference whether at hand is a "military siege" or a "political siege", as Knesset Member Zoabi's attorney retroactively argued before us.

 

8.            Here one should note that it is possible that MK Zoabi also violated additional Rules of Ethics however since this was not reflected in the decisions which are the subject of the Petition – I shall refrain from addressing this, just as I shall also presume (although this presumption could be disputed, in light of the provision of Section 1(A1)(4) of the Knesset Members Immunity Law) that the material immunity applies with respect to her actions, which are the subject of the complaints, in all that relates to criminal, or civil, liability (as opposed to ethical liability – see: HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) and see Barak Medina and Ilan Saban, "Expanding the Gap?" on the Scope of a Member of Knesset's Right to Support Resistance to the Occupation, Following HCJ 11225/03 Bishara v. The Attorney General, Mishpatim 37 219, on page

 

 

 

236, footnote 42 (5767)).

 

9.            Before ending I shall add and emphasize that I concur with the words of my colleague, Justice E. Hayut, with respect to the right to review the minutes of the Ethics Committee when at issue is a disciplinary proceeding that is being held against the member of Knesset. This is warranted by the principle of "proper process".

 

10.          In summary: All that is stated above leads to the conclusion that in the circumstances of the matter (including the actual duration of the sanctions that were imposed upon the Petitioner) – it is inappropriate to intervene in the ethical decisions that were issued in the matter of the Knesset Member Zoabi, which are the subject of the Petition.

 

I shall end with a note, as I also remarked in the hearing, that it is not for no reason that the Petitioners and their educated attorneys did not find even one case in comparative law in which a member of parliament called for a siege against his state, and was absolved.

 

Justice

 

Justice S. Joubran

 

1.            Is the Knesset's Ethics Committee (hereinafter: the "Ethics Committee" or the "Committee") authorized to apply sanctions of one kind or another due to political remarks that one of its members said or wrote outside of the Knesset, when such remarks are covered by the material immunity granted to a member of Knesset? If so, did the Ethics Committee exercise its authority lawfully? These are the two questions we are to rule on in this Petition.

 

2.            After hearing the Petition, this Court, by a majority of opinions, decided to deny it. My opinion was different, and had it been heard, we would have ruled that the Ethics Committee exercised its authority unlawfully, and we would have cancelled its decision. At the end of our judgment, we ruled that our reasons would be given separately, and now the time for the reasons has come.

 

3.            As mentioned, the Petitioner argued that the Ethics Committee lacks the authority to impose a sanction upon her for remarks that are covered by the material immunity that is granted to a member of Knesset. She also argued that the things that she said and wrote do not constitute a violation of the Rules of Ethics. My colleague, President M. Naor, is of the opinion that the Ethics Committee was authorized to address the Petitioner's remarks and that in the current case it exercised its authority lawfully. I agree with my colleague the President on the matter of the authority. I am also of the opinion that the Committee is authorized to address the Petitioner's remarks. The scope of disagreement between me and my colleague relates to the discretionary level. I am of the opinion that the Petitioner did not violate the Rules of Ethics, and therefore, the Committee's authority was exercised unlawfully. I shall add a few words on the authority level, and thereafter shall discuss the discretionary level.

 

 

 

 

The Authority Level

 

4.            The Ethics Committee operates by virtue of Section 19 of the Basic Law: The Knesset, which constitutes authorization for regulating the Knesset's work proceedings in By-Laws, and by virtue of the Knesset Members  Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Immunity Law"). The two main provisions which are relevant to the case at hand are:

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal action, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

 

13D. (a) The member of Knesset who committed one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated any of the Rules of Ethics.

 

5.            The Rules of Ethics appear in the Knesset's By-Laws and their power is vested by virtue of Section 13E(1) of the Immunity Law. In the matter at hand, the Ethics Committee ruled that the Petitioner violated Section 1A of the Rules of Ethics which prescribes, in the relevant parts, that:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

6.            The Petitioner's approach is that there is no place for the Ethics Committee to act if the member of Knesset's action is protected by material immunity. According to this approach, Section 1(a) of the Immunity Law requested to exclude  these matters from the Committee's authority. This approach was denied in HCJ 12002/04 Makhoul v. The Knesset PD 60(2) 325 (2005) (hereinafter: the "Makhoul" Case). In that matter, it was ruled that the Ethics Committee's decision is not a "legal action" which is included in Section 1(a) of the Immunity Law, and therefore a member of Knesset is not immune from facing it. This ruling coincides with the purpose of Section 13D of the Immunity Law, which anchors the Ethics

 

 

 

Committee's authority to address the violation of the Rules of Ethics and to apply sanctions on members of Knesset for such violations. This ruling also coincides with the interpretive proceeding which should be applied to Sections 1 and 13D of the Immunity Law. Thus, it was ruled in the Makhoul Case that normative harmony requires the interpretation that at hand are two provisions which complement each other, rather than there being a contradiction between two provisions that are mutually exclusive (ibid, on pages 334-335). Therefore, I am of the opinion that that stated in Section 13D complements that stated in Section 1 and does not contradict it.

 

7.            The Petitioner raised an additional argument on the authority level, that the Ethics Committee is not authorized to discuss political remarks by members of Knesset and that its authority is limited to remarks that substantially disturb the work of the Knesset and relate to the social relationship within the Knesset. Indeed, the position of the Ethics Committee in its decisions is that "in all that relates to political remarks, the Committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks". However, I am of the opinion, as is my colleague, the President, that this does not mean that the Ethics Committee lacks authority to discuss these remarks (see paragraphs 27-28 of her opinion). Indeed, my opinion is that one must distinguish between remarks that are only political, and remarks that constitute bad-mouthing and slandering of individuals and publics. However, I am of the opinion that the distinction does not have to be made at the authority level, but rather at the discretionary level. Meaning, in the scope of judicial review which should be applied on decisions that discuss these remarks and the scope of protection that should be given to remarks of such nature, as I shall elaborate below.

 

The Discretionary Level

Limiting the Freedom of Political Expression of an Elected Official

 

8.            At the discretionary level, the Court examines the merits of the Ethics Committee's decision. In the case at hand, whether the Petitioner, through her remarks, violated the Rules of Ethics by virtue of which she was convicted. This matter is directly related to the question of members of Knesset's freedom of political expression and the question of the limitation thereof. I am of the opinion that the point  of reference in this matter lies in the recognition of the importance of guaranteeing the existence of elected official's freedom of political expression and of striving to promote it.

 

9.            "The political expression – the speech, the article, the interview – are the member of Knesset's primary working tools" – so wrote President A. Barak in HCJ 11225/03 Knesset Member Dr. Azmi Bishara v. The Attorney General PD 60(4) 287, 326 (hereinafter: the "Bishara" Case). Political expression is the core of parliamentary activity and constitutes a primary tool for the member of Knesset to perform his main duty – expressing his position and the positions of the public that voted for him on public matters.

 

10.          In order to guarantee that the member of Knesset shall be able to faithfully fulfill his position and represent the public that voted for him while giving free and full expression of his opinions and perspectives, without fear or concern, the legislator

 

 

 

chose to grant the members of Knesset material immunity against being criminally charged or against a civil law obligation, for remarks that were expressed in the framework or for the sake of fulfilling their position. This immunity is essential to guarantee the democratic character of the ruling government. In the Bishara Case it was ruled as follows:

 

"The purposes underlying the material immunity are varied. They are meant to protect the fundamental political freedoms. They are meant to allow proper activity of the legislative authority. They reflect a desire to guarantee the member of Knesset's independence and freedom of action. They are meant to strengthen the democratic rule. On the other hand, one must not ignore the other (general) purposes of the Immunity Law" (ibid, on page 323)

 

One can learn of the importance of protecting the members of Knesset's freedom of political expression, which is reflected in the material immunity granted to them, and of the tight linkage between it and the proper activity of the democratic process, from the spirit of the words of President S. Agranat in Criminal Appeal 255/68 The State of Israel v. Avraham Ben Moshe, PD 22(2) 427, 435 (1968), when he examined the actions of a person who was harassing a member of Knesset due to words spoken by such elected official:

 

"The right of a member of a house of representatives, in this forum or elsewhere, to voice his views on the "cutting-edge" political questions, without fear and concern that he will be harmed by anyone who does not support such perspectives or who is convinced that they are dangerous for the nation – such right is but only a tangible reflection of the tight linkage that exists between the principle of freedom of expression and dispute and the proper activity of the democratic process. Moreover, due to the significant importance we attribute to the later aspect of the discussed principle, the legislator deemed it fit to grant the members of Knesset an  entire system of privileges, which are meant to guarantee that each of them shall be able to express their opinion and formulate their positions, regarding the political issues that require solution and decision, in an open and free manner and without them having to be accountable for them to any person or authority. I mean the various immunity rights… one of which is that which is prescribed in Section 1(a)…"

 

11.          The Israeli legislator even adopted a rather broad model of material immunity in Section 1(a) of the Immunity Law. This immunity applies also to actions and not only to voting or expressing an opinion and spans over the activity of the member of Knesset within the walls of the Knesset and outside thereof, and applies also after he ceased being a member of Knesset (see: HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 204 (1987) (hereinafter: the "Miari" Case); the Bishara Case, on page 301). The broad scope of the material immunity indicates the great importance the legislator attributes to protecting the

 

 

 

members of Knesset's freedom of expression. This protection is not meant to serve the member of Knesset's personal well-being, but rather is meant to guarantee the right of all of the citizens to full and effective political representation – that their opinions be heard, through their elected representatives, in the public discourse, in general, and in the house of legislators, in particular.

 

12.          It shall be noted that guaranteeing the existence of freedom of political expression is also important when at hand are aggravating and outrageous remarks and ideas, and it is especially important for members of Knesset who express ideas that are perceived as such by the majority of the public. Indeed "Freedom of expression is also the freedom to express dangerous, aggravating and deviant opinions, which disgust the public and which it hates (HCJ 399/85 Kahane v. The Executive Committee of the Broadcast Authority, PD 41(3) 255, 279 (1987)). The essence of the importance of this right is granting protection to words that are not popular and not in consensus and which can even grate on the ears.

 

13.          There is no denying that guaranteeing the existence of freedom of free political expression and minimizing the limitation thereof is especially critical for members of Knesset who belong to minority groups in the population. My colleague, Justice E. Hayut, elaborated in her opinion on the special importance of protecting the freedom of expression of minority groups in general. I am of the opinion that when members of Knesset are at issue, this is all the more relevant. There is great significance to protecting the freedom of expression of minority groups in the parliament and restraining the infringement thereof. So as to guarantee effective and egalitarian representation of the minority groups in the parliament, in a manner in which their voice shall be heard and not excluded. This approach is grounded in the rulings of this Court. For example, in the Bishara Case, President A. Barak stated, in the context of the members of Knesset's material immunity, that protecting freedom of expression is "vital particularly for citizens who are members of minority groups in the population. In this sense the material immunity also advances civil equality by also protecting the right of the members of the minority groups in the population to full and effective political representation, and protects them by protecting the member of Knesset who is representing their affairs and their  perspectives against the power of the majority" (ibid, on page 323).

 

14.          This approach was also recognized in the judgment of the European Court of Human Rights (Szel v. Hungary, 44357/13 (sep. 16, 2014) at para 69; Karacsony

v. Hungary 42461/13 (sep. 16, 2014) at para 72), to which my colleagues also referenced. As mentioned, the European Court cancelled the conviction of an ethical offense of four opposition members of Parliament in Hungary, due to their remarks in the framework of acts of protest. In that matter, it was ruled that in a democratic society, freedom of expression is a tool of supreme importance for members of Parliament. It was also ruled that this freedom of expression is particularly necessary for members of Parliament who belong to minority groups, in order to guarantee their right to express their positions and the right of the public to hear these positions.

 

 

 

 

One can also learn of the importance of protecting freedom of expression of minority groups from the spirit of the judgment of the European Court of Human Rights in Jerusalem v. Austria ECHR 26958/95. In that case it was ruled that interfering with an opposition member of parliament's freedom of expression calls for broader scrutiny by the Court:

 

"Interference with the freedom of expression of an opposition member of parliament, like the applicant, calls for closest scrutiny on the part of the Court" (at para 36)."

 

The Ethics Rules

 

15.          As to the ethics rules. As mentioned, the point of reference in any legal examination of the matter being discussed – including the examination of the ethics rules - is the recognition of the supreme status of freedom of expression in our legal system and the importance of minimizing interference therewith. I agree with my colleague, the President, that freedom of expression also projects onto the laws of ethics that apply to members of Knesset (see paragraph 27 of her opinion). This Court has ruled in the past that "Freedom of expression projects onto and has implications for all the other branches in our legal system, including disciplinary rules" (Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel, paragraph 25 of the judgment of (then) Justice M. Naor (January 1, 2002)). This Court applied a similar approach with respect to the disciplinary rules that apply to civil servants (Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227 (1986) (hereinafter: the "Sapiro" Case)). In that case it was ruled that:

 

"We must be diligent about the promotion and existence of freedom of expression, even in light of the reasonable assumption that there is a difference, in terms of the range of permitted actions, between an ordinary citizen and a civil servant, and consequently there are certain limitations on the public remarks by a civil servant […], the qualifications that are imposed upon civil servants, should, to the extent possible, be minimized. Additionally, general and unspecified reservations should not be imposed upon the civil servants, but rather their classification should be limited to those circumstances in which there is near certainty of damage or harm to the public service or to the interests it serves (ibid, on pages 236-237)

 

I am of the opinion that this is all the more relevant when at issue is the limitation of members of Knesset's freedom of political expression, since their political expression is the main tool for them to perform their duty. Therefore,  the question is what are the criteria for ruling that a member of Knesset violated the ethics rules? I am of the opinion that one can learn of the proper criteria from looking at the laws of the members of Knesset's material immunity. As mentioned, the broad scope of material immunity that is granted to the members of  Knesset  embodies  the  supreme  importance  the  legislator  attributed  to

 

 

 

protecting their freedom of expression. I have listed the reasons for this in the paragraphs above, and, as I have demonstrated, previous rulings of this Court have also done this well. It appears that these reasons are relevant also when at issue are the ethics rules. My colleague, Deputy President E. Rubinstein is of the opinion that "Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, 'a pressure release valve', to maintain a framework of parliamentary norms" (paragraph G of his opinion). Indeed, a conviction of an ethical offense is generally considered less severe than a civil or criminal conviction against which the material immunity protects, and generally the sanctions accompanying it are less severe. It appears that this also justifies distinguishing between the extent of the democratic tolerance which applies in each set of rules. Thus, there can be remarks that do not cross the red lines that are defined by the material immunity and are covered thereby, while they do constitute ethical violations. However, a conviction of an ethical offense is also not a trivial matter, and the sanctions accompanying it can be especially severe, as in the current case – removal from the sessions of the Knesset's plenum and its committees for a period of six months. This can create a chilling effect for members of Knesset. In my opinion, this approach requires the Ethics Committee to apply restraint when limiting members of Knesset's freedom of expression and convicting them under the laws of ethics, for political remarks.

 

16.          It is important to note in this context that that which is stated above is relevant when at issue is the violation of an ethical provision in the matter of a member of Knesset's purely political remark - as in the case at hand – and not when dealing with remarks that constitute slander or bad-mouthing. The reason for this is the degree of importance that should be attributed to political expression, since it promotes a free market of opinions and reflects the perspectives of the voting public. This is in contrast with the second type of expressions which do not promote these values, but rather harm the status and dignity of the Knesset and deteriorate the public discourse in Israel. This also coincides with the approach of the Ethics Committee itself, as it emerges from its decisions:

 

"To the extent possible, the limitation of the members of Knesset's freedom of political and ideological expression should be avoided, even when the words they say are harsh and outrageous. The right of freedom of expression constitutes a tool of supreme importance for members of Knesset, within the Knesset and outside thereof, the essence of the importance of this right is granting protection to words that are not popular and which can even grate on many ears. However, if, in all that relates to political remarks the position of the committee is that that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing, slandering, mudslinging and humiliating individuals and publics, the committee's position is materially different. (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013)).

 

 

 

17.          In the case before us the Ethics Committee decided that the Petitioner violated both of the values prescribed in Sections 1A(2) and 1A(4) of the Rules of the Ethics, which read as follows:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

The Ethics Committee ruled that "The Member of Knesset's words that were written and spoken in sensitives times do not coincide with the best interest of the State, even if we grant this term an expansive interpretation, and they constitute a violation of the duty of allegiance that applies to members of Knesset". It was further ruled that "The words severely prejudice the public's trust in the Knesset and its image, which is also reflected in the large number of complaints that were filed with the Committee".

 

18.          The above-mentioned Section 1A prescribes basic values which outline general criteria for the conduct of members of Knesset. As my colleagues, I am of the opinion that even though at hand are basic values that do not delineate a sanction alongside them, they benefit from an independent status and members of Knesset who act in contradiction to that stated therein, can be convicted by virtue thereof. Thus, a conviction of an ethical offense based on Section 1A(4) would be appropriate when a member of Knesset prejudices the harms the Knesset or the members thereof (the Makhoul Case; Rules of Ethics Preparation Committee Report, December 2006, on page 46), or when a member of Knesset acts in a manner that prejudices the public trust. In my opinion, it appears that a conviction of an ethical offense based on Section 1A(2) would be appropriate when a member of Knesset acted not for the advancement of the best interest of the State as opposed to a situation in which he did not act to advance its best interest. Such interpretation takes into account that neutral actions by members of Knesset which on the one hand do not advance the best interest of the State, and on the other hand do not harm it, shall not be included in the prohibition.

 

19.          According to my position, an interpretation that expands the limits of patience and tolerance is appropriate in this matter as well. In my opinion, one must act with a strict and stringent criterion when determining that a member of Knesset violated the values of "advancing the best interest of the State" and "fostering the public's trust". General and unspecified limitations should not be imposed upon a member of Knesset, but rather the classification should be limited to those extreme cases. Consequently, the member of Knesset should be granted broad freedom of action and his actions and words should be interpreted liberally,

 

 

 

such that only the extreme and clear substance of the contents of his words can be the basis for his conviction (compare: the Miari Case, on page 212). There are a number of reasons for my said position. Firstly, the specific provision deals with political remarks, which by their nature are intertwined with the member of Knesset's duties. As such, members of Knesset who engage in political expression as a main part of their position, are at a high risk of committing this ethical prohibition (compare: the Bishara Case, on page 326); Secondly, in light of the broad language in which the values of "advancing the best interest of the State" and "fostering the public's trust" are drafted, there is a concern that if members of Knesset shall be exposed to severe sanctions, which can reach six months of being removed from the sessions of the Knesset's plenum and its committees (Section 13D(d)(4) of the Immunity Law), this could chill their ability to express themselves without fear also in cases in which what they are saying does not constitute an ethical offense. Thirdly, members of Knesset often express themselves in controversial matters in a manner which could appear to be callous and outrageous to part of society. This is especially true in the divided Israeli society (see: E. Benvenisti "Regulating Freedom of Expression in a Divided Society" Mishpatim 30 29 (1999)). Hence, it is natural that in light of the Petitioner's perspectives and the platform of her party, she will find herself expressing positions regarding the Israeli-Arab conflict, and the risk that her statements shall be interpreted by a large part of society, as statements that harm the State's best interest, is great. (Compare: the Bishara Case, on page 327).

 

20.          Given the above, one must examine whether the Petitioner, through her remarks, violated the Rules of Ethics. Meaning, is the Ethics Committee's decision which is the subject of the Petition, lawful. Examining the merits of the Committee's decision raises a question of the scope of judicial review of the Ethics Committee's decisions. I shall now address the examination of this scope and thereafter examine, in the form of applying the general rule to the specific case, whether the current case justifies our intervention.

 

The Scope of Judicial Review of the Ethics Committee's Decisions

 

21.          Case law prescribes that the scope of judicial review is impacted by the type of decision which is the subject of the review (see: HCJ 652/81 Knesset Member Yossi Sarid v. The Chairperson of the Knesset PD 36(2) 197 (1982)). As my colleague, the President, elaborated, it was ruled in the Makhoul Case that in general the Ethics Committee has broad room for maneuver and consequently the room for judicial review is relatively narrow (ibid, on page 343). I agree with this position, however, each case is examined on its own merits and the scope of the judicial review is determined in accordance with the circumstances of each case. In the Makhoul Case, the main reasons for determining the relatively narrow scope of judicial review were that the Ethics Committee's decisions are closer to the sphere of the Knesset's internal matters; that its decisions harm the member of Knesset in a relatively mitigated manner; and that at issue are matters which generally have a small impact outside of the Knesset. Therefore, it was ruled that the extent of this Court's intervention shall be less than that which is exercised with respect to other quasi-judicial decisions that are in the framework of the Knesset's authority. However, these reasons are not relevant in the current case. Since at hand are political remarks that were said outside of the Knesset and

 

 

 

which do not relate to its internal affairs or its conduct or to the conduct of any of its members. The Ethics Committee's decision in the current case harms the core of the freedom of political expression, and as such its impact outside of the Knesset is not small. In my opinion in such cases, when the Committee examines purely political remarks, there is no justification for the judicial review to be narrower that the judicial review of other quasi-judicial decisions.

 

22.          This ruling coincides with the ruling in the Makhoul Case, that when examining the Ethics Committee's decision, the Court shall take into consideration those consideration that relate to the severity of the infringement of the basic rights and the proportionality of the sanction that is imposed by the Ethics Committee. Indeed, ethics rules are not a cover for infringing basic rights that are granted to a member of  Knesset. When the Knesset wishes to exercise its authority  and qualify the rights granted to a member of Knesset by law, it must comply with the legal criteria that are required for exercising this authority (see: the Miari Case, on page 196). The more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the act deviates from the proper extent, the more this Court will be willing to intervene (see: the Makhoul Case, on page 344). In the case before us the member of Knesset's freedom of expression was infringed. The fact that at hand is a member of Knesset from a minority group exacerbates the infringement and justifies broader judicial review. In this matter, the words of Justice E. Rivlin in the Bishara Case, are relevant:

 

"In any event the special significance of judicial review in those cases in which basic human rights are at issue, should be recognized. It is here that it is important that the judicial review exhaust its full power and ability. This ability shall serve it if it shall succeed in refraining from scattering its legal and social resources which are nurtured by the public's trust, when the scope of deference expands. This is true in general, and particularly when immunity relating to freedom of expression is at issue, and in the case at hand – not just expression, but political expression, and not just political expression, but political expression of a member of Knesset, and not just a member of Knesset, but a representative of a minority group" (ibid, on page 337) [emphases added – S.J.]

 

From the General Rule to the Specific Case

 

23.          I shall now examine the Petitioner's remarks in light of that stated. I shall state at the outset that in my opinion the Petitioner did not violate the Rules of Ethics. I did not reach this conclusion easily, and it is not obvious. Indeed, in my opinion this is quite a borderline case. The Petitioner's statements, at the timing in which they were said, are harsh and in my opinion near the line beyond which it could not be said that they comply with the Rules of Ethics. However, in my opinion, given the circumstances of the matter, and considering the entire considerations, the proper conclusion is that ultimately the Petitioner did not violate the Rules of Ethics. The main reason for this is that one cannot extract any clear and unequivocal content, that amount to a violation of the ethical values, from her

 

 

 

remarks, but rather her remarks were vague, some had reservations attached and some had explanations that were later attached, as I shall immediately describe in detail.

 

24.          As for the call in the article dated July 13, 2014, to impose a siege on the State of Israel, the Petitioner did not state what type of siege she is calling for – whether a political siege or a military siege. The Petitioner's attorney claimed in the hearing before us that the Petitioner meant the imposition of a political siege and not the imposition of a military siege. I agree with my colleague the President that the words of the Petitioner's attorney were stated retroactively and that the Petitioner should have presented this explanation to the Ethics Committee. However, I am of the opinion that this interpretation that was suggested by the Petitioner's attorney – that the call is for a political and not a military siege – is at least possible, and could be implied from the words the Petitioner wrote. In this context, I do not agree with my colleague, the Deputy President, that it is very difficult to interpret the call "to impose a siege on the State of Israel" as only a political siege, but rather as a military siege.

 

25.          As to the Petitioner's statements in the interview dated June 17, 2014, that the abductors of the teenagers "Are not terrorists", these statements were accompanied at the time they were said, by a reservation from the act of abduction, as it was said "even if I do not agree with them". Following the said interview, the Petitioner explained in the media that she objects to the abduction, that she does not agree with this act and that she objects in principle to harming civilian population, Israeli and Palestinian. As to her remark "They are not terrorists", she explained that it is her principle position not to use the term "terror" in the Hebrew press. I am of the opinion that in the circumstances of the matter, these words by the Petitioner somewhat soften her remarks in the interview. There are two reasons for this. Firstly, the statement "They are not terrorists" was made orally, in an interview, as a response to the interviewer's question. Meaning, the Petitioner did not have time to redraft or refine her statements, or retract them before they were made public. A similar position was expressed in the European Court of Human Rights in Mondragon v. Spain 2034/07, where it was ruled that the Court must take into account the fact that the statements were made orally during a press conference so that it was not possible to redraft or retract the statements before they were made public:

 

"The Court further takes account of the fact that the remarks were made orally during press conference' so that the applicant had no possibility of reformulating' refining or retracting them before they were made public (at para 45)".

 

Secondly, the Petitioner provided explanations in the media to the meaning of her remarks with regard to the teenagers' abductors, in order to convince the public that she objects to the act of abduction and to harming civilian population. The Petitioner explained that the statement "They are not terrorists" stems from her principle position against using the term "terror" in Israeli media, and not from her identifying with the act of abduction. Even if these explanations which the Petitioner provided to the media, do not reflect her inner feelings, the fact that they are possible explanations, is sufficient to somewhat soften her remarks. I

 

 

 

agree with the position of my colleague, the President, that extreme acts or expressions which legitimize acts of terror and which encourage and support violence against civilian population, cannot overcome the ethical prohibitions. However, as I explained above, this is not exclusively and unequivocally implied from the Petitioner's statements, in light of her reservations when they were said and in light of her later explanations. One must also add that the Attorney General ruled on July 24, 2014, that a criminal investigation shall not be opened against the Petitioner for her remarks regarding the teenagers' abductors. The explanation given to this by the deputy Attorney General is that the Petitioner's reservation from the act of abduction "creates difficulty in perceiving the statements as inciting abduction". It appears, from all of that stated above, that one cannot extract clear and unequivocal content from the Petitioner's remarks that amount to a violation of the ethical prohibitions.

 

26.          As for the timing in which the statements were said, I concur with the remark by my colleague, Justice E. Hayut, that one must set uniform criteria for the protection of freedom of expression during times of war and times of calm (see paragraph 4 of her opinion). In my opinion, the supreme status of the freedom of expression is also reserved during times of war. The Ethics Committee also ruled in its decision which is the subject of the Petition that "The right of members of Knesset to express positions that are not in consensus and to express public criticism on the government, is reserved also during times of war". It shall also be noted that the distinction between times of calm and times of crisis is not always sharp and clear, particularly in the Israeli reality. In this context the words of President A. Barak in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), to which my colleague referred, are relevant:

 

"Furthermore, it is not possible to make a sharp distinction between the status of human rights during times of war and their status during times of peace. The line between terror and calm is thin. This is true everywhere and certainly in Israel. It is not possible to sustain this over time. We must treat human rights seriously both during times of war and times of calm" (ibid, in paragraphs 20-21).

 

However, as my colleague, Justice E. Hayut, stated "the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis."

 

27.          In summary, in light of the great value of granting members of Knesset free political expression and minimizing the limitation thereof as much as possible, particularly when at issue are members of Knesset who belong to  minority groups, and in light of the broad language of the ethical provisions by virtue of which the Petitioner was convicted, the conviction of members of Knesset by virtue of these provisions should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the case before us, I am of the opinion  that one  cannot extract clear and unequivocal content from the Petitioner's statements, both in light of her reservations from the act of abduction while making the remarks and in light of her later explanations in the media.

 

 

 

Therefore,  it is my position that  the  decision of the  Ethics  Committee  was reached unlawfully.

 

28.          In light of all that stated, if my opinion were to have been heard, we would have accepted the Petition and cancelled the Ethics Committee's decision in the Petitioner's matter.

Justice

 

It was decided by a majority of opinions as stated in the judgment of President M. Naor.

 

Given today, the 21st of Shvat, 5775 (February 10, 2015).

 

President            Deputy President            Justice

Justice  Justice