Affo and Another v. Commander Israel Defence Force in the West Bank (HC 785/87); Rafia and Another v. Commander Israel Defence Force in the Gaza Strip and Another (HC 845/87); Hindi v. Commander Israel Defence Force in the Judea and Samaria Region (HC 27/88)

International Courts and Tribunals (London, vol. II, 1968) 165-166, which was cited in the above-mentioned H.C. 606,610/78, at p. 121. The learned writer expresses the belief that the prohibition against the deportation of residents of an occupied territory is but “an attempt to clarify existing rules of international customary law”. I assume that here too, the reference is to arbitrary deportations of population, akin to the Hitler regime. If the author was also referring to deportation of individuals in order to preserve the security of the occupied territory, then that is the opinion of an individual author, stated in vague terms with no substantiation whatsoever.

After a detailed analysis of the Petitioners’ arguments, Landau P. decided, as quoted above, to accept the more far reaching argument of the State regarding the applicability to our legal system of Article 49, which falls within the realm of conventional law, and therefore saw no need for additional comments on the content of the Article.

At the time no basis was given for the argument that Article 49 expresses a customary rule of international law; and given the material presented to us, the armed conflicts that have occurred since 1949 (India-Pakistan, Cyprus and others) have not brought about legal decisions that would shed a different light on the issue. In any case if there are any, they were not brought to our attention by the parties. We will return to the commentary of Dr. J. Pictet on the reason for the inclusion of Article 49 in the Convention; but regarding his interpretation of the scope of the applicability of the Article, I will already note that it has not been explained why we are to prefer the remarks of Dr. Pictet over, for example, those of Prof. J. Stone.

The background which the draftsmen of the Convention had in mind is clearly reflected in the deliberations of the Geneva Conference. The relevance of the background is twofold: It describes the flaw which the Convention seeks to rectify (H. Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties” 26 Brit. Y.B. Int’l L. (1949) 48, 53 and compare with C.A. 31/63 [6] above); and the purpose that the draftsmen had in mind (O’Connell, supra, at 271; Cr. A. 94/65 [8] cited above and the remarks of Learned Hand J. as there quoted, at 80). It even sheds light on the legal situation for which they strove (C.A. 165/82 [9]). This is also the reason that compelled Landau P. in H.C. 513,514/85 and M.A. 256/85 [5] cited above, to turn to the question of whether the prohibition against deportation is within the realm of law rooted in custom or a conventional innovation.

(h) What were the considerations guiding the draftsmen of the Convention? An

examination of Actes de la Conference Diplomatique de Geneve de 1949 (Berne, tome 2) 648, 649, 743, 744, 810, 811, shows unequivocally that in using the term “deportations”, the participants in the deliberations referred to deportations such as those carried out during World War II. Thus it is stated for example at p. 810:

Bien qu’on se soit prononce a l’unanimite pour condamner les deportations comme celles qui eurent lieu pendant la derniere guerre, la phrase qui se trouve au debut de l’article 45 [In the draft the current Article 49 bore the number 45 – M.S.] a suscite quelques difficultes, car il etait peu aise de concilier les idees exprimees dans des termes divers, en francais, en anglais et en russe. Finalement, le Comite a decide d’adopter un texte qui interdit les transferts individuels ou collectifs obligatoires ainsi que les deportations de personnes protegees, d’un territoire occupe dans un autre pays, mais qui autorise les transferts volontaires. (Emphasis added – M.S.)

The Convention draftsmen referred to deportations such as those that took place during the last war and in the framework of the deliberations sought a text that would reflect the ideas that were expressed in different ways and in different languages.

So did Pictet in his article “Convention de Geneve – Protection de Civil” 76 Recuiel des Cours (1950) 1, 96. He pointed to the accomplishments of the Convention in contrast with the situation that prevailed before it, cited the futile attempts of the International Committee of the Red Cross in 1921 to prohibit the execution of hostages and deportations, and described the suffering of the civilian population during World War II:

Des centaines de milliers d’entre eux ser virent exposes aux deportations aux prises d’otages, a l’internment dans les camp de concentration, au pires services et a la mort.

In translation: Hundreds of thousands of them were exposed to deportations, to the taking of hostages, to internment in concentration camps, to the most severe brutality and to death.

Article 49, which prohibited deportations was connected therefore with such provisions. As Pictet describes at pp. 109-110:

Quand an songe aux millions de personnes transferees de force au cours de dernier conflit et a leurs souffrances physique et morales on ne peut que saluer avec reconnaissance un texte mettant fin a ces pratique inhumaines.

In his words: When one thinks about the millions of people who were forcibly transferred from place to place during the last conflict [i.e. World War II – M.S.], and about their suffering, both physical and moral, one cannot but thankfully bless the text [of the Convention – M.S.] which put an end to these inhuman practices.

Here then deportations, concentration camps and the taking of hostages were linked together and the word “deportations” was used in the context described above.

Incidentally, parallel to this, Article 34 of the Convention prohibits the taking of hostages, something which Pictet calls “an innovation in international law” (“constitue une innovation dans le droit internationale”).

One is not speaking in this regard, not even by inference, about the removal from the territory of a terrorist, infiltrator or enemy agent, but rather about the protection of the entire civilian population as such from deportation, since the civilian population has more and more frequently become a direct victim of war, despite its civilian character and despite its lack of involvement in active fighting.

M. H. Coursier (“Droit Humanitaire: Protection des Personnes Civiles en Temps”, 99 Recueil Des Cours (1960) 397, 399) cited the mass attacks against civilians in the context of the situation preceding the development of humanitarian law, when unless expressly prohibited, everything was permitted. He mentions in this context the words of Grotius, according to which:

Le massacre des femmes et des enfants est compris dans le droit de la guerre.

(Translation as found in Pradier-Fodere, III ch. 419.) Namely: The massacre of women and children was permissible under the laws of war at the time.

He saw the Convention as a necessity stemming from the numerical increase in civilian victims. In World War I half a million civilians were killed as opposed to nine million soldiers. In World War II a kind of numerical parity was created as 24 million civilians and 26 million soldiers were killed. Coursier mentions the deportations in the context of forced labour, but makes no reference to the broad interpretation which would also apply the deportation prohibition to terrorists or enemy agents, whose deportation is necessary to protect the civilian population, for which the military authority is responsible.

That is also the case in B.M. Jankovici’s book “Public International Law” (New York, 1984) 375, 376. In discussing the prohibition against deportation, he refers to the millions of people who were tortured and killed in the concentration camps.

Also F. F. Spangenberg in “Die Zwangsarbeit der Bevolkerung Kriegsbesetzter Gebiete und das Volkerrecht” (Kiel, 1961) (Forced Labour of the Population in an Occupied Territory and The Law of Nations) describes the forced transfers and deportations in the war in connection with Article 49 and points out that –

Die “Deportation” als solche ist somit erstmalig absolut verboten.

The reference is to the manner and form of deportation in World War II, about which he writes in his book.

This is also the meaning of the text found in Schlochauer, Worterbuch des Volkerrechts, De Gruyter (vol. 3, 1962) 560; see the entry entitled “Vertreibung” (Deportation).

R.I. Miller, The Law of War (Lexington) 88, creates the like link between the various tribulations that mankind underwent in World War II, which he details, and the prohibition in Article 49:

In World War II at least 5 million persons were deported from occupied territories to Germany as part of the Nazi program of slave labor, persecution and death. Although HR-1907 does not prohibit deportation per se, its articles with respect to the safety and order of the inhabitants and requisitioning of supplies and services lead to the conclusion that forcible deportation is beyond the legitimate activities of an occupying power. The International Military Tribunal and Nuremberg and the Military Tribunals under Control Council Order no. 10, pursuant to their charters that defined “deportation to slave labour or for any other

purpose” to be war crimes, held the Nazi deportations to be unlawful…………………

Nevertheless, forcible deportation alone was held in the Krupp Trial to be a violation of customary law, as well as deportation for an illegal purpose (for example, forced labour in the territory of the occupying power) and deportation that disregards recognized standards of decency and humanity.

Accordingly, GC-949 provides that “individual or mass forcible transfers” and deportations of protected persons from occupied territory to the territory of the occupying power, or any other country, are prohibited regardless of motive. The total or partial evacuation of a given area is permitted if the security of the population or imperative military reasons demand.

(The emphasis pointing to the causal link is added – M.S.)

On the developing trend in the laws of war to protect the civilian population as such and to try to distinguish effectively between it and the fighters, see also Prof. F. Kalshoven, The Law of Warfare (Leiden, 1973), 28.

W. O’Brien, The Conduct of Just and Limited War (New York, 1981) presents the subject in a similar context, that is, in connection with the harm caused to a civilian population by transferring it from its location and in connection with the exception regarding evacuation of civilians on security grounds or for imperative military reasons:

The last specific prohibition of the positive international law jus in bello to be considered, is that against forced displacement of civilians. With respect to international conflict, Article 49 of the 1949 Geneva Civilians Convention flatly prohibits massed forcible transfers or deportations of protected persons to the territory of the occupying power or to any other country, “regardless of their motive”. Article 49 then provides that “the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand”. Conditions for such a transfer are to be limited to what is unavoidable.

It was also pointed out that the 1949 Geneva Convention was in this respect an improvement on and an extension of the agreement on the protection of civilians signed in Berne on 25 April 1918 between Germany and France, which also included provisions on deportation and forced labour (See Coursier, supra, at 397).

I would add that joining the subject of “evacuation”, as it appears in the second paragraph of Article 49, to the subject of “deportations”, where the matter of “evacuation” is given as an exception to the “deportation” prohibition and both are linked by the conjunction “nevertheless”, also affects the interpretation of the first paragraph of Article 49. In other words, tying the evacuation of a civilian population or portions thereof, which is permissible under certain circumstances, with deportation of the population, which is prohibited, teaches us also about the substance of the subject in the first paragraph. That is, inter alia, an example of an interpretation “based on the context”, to which the Vienna Convention refers.

The placing of the subjects of the mass evacuation of a civilian population as such and the prohibition against deportation, side by side, is also discussed in the works of P. la Pradelle, La Conference Diplomatique Et Les Nouvelles Conventions de Geneve Du 12 Aout 1949 (Paris, 1951) 66-67, 185 and E. Castren, The Present Law of War and Neutrality (Helsinki, 1984). See also J.A.C. Gutteridge, “The Geneva Conventions of 1949”, 26 Brit. Y. B. Int’lL. (1949) 294, 323 n. 3.

The conclusion from everything said above, is that the purpose which the draftsmen of the Convention had in mind was the protection of the civilian population, which had become a principal victim of modern-day wars, and the adoption of rules which would ensure that civilians would not serve as a target for arbitrary acts and inhuman exploitation. What concerned the draftsmen of the Convention were the mass deportations for purposes of extermination, mass population transfers for political or ethnic reasons or for forced labour. This concern is the “legislative purpose” and this is the material context.

It is reasonable to conclude that the reference to mass and individual deportations in the text of the Article was inserted in reaction also to the Nazi methods of operation used in World War II, in which mass transfers were conducted, sometimes on the basis of common ethnic identity, or by rounding up people in Ghettos, in streets or houses, at times on the basis of individual summonses through lists of names. Summons by name was done for the purpose of sending a person to death, to internment in a concentration camp, or for recruitment for slave labour in the factories of the occupier or in agriculture. Moreover, it seems that the summons to slave labour was always on an individual basis.

(i) The gist of the Petitioners’ argument is that the first paragraph prohibits any transfer of a person from the territory against his will.

The implications of this thesis are that Article 49 does not refer only to deportations, evacuations and transfers of civilian populations, as they were commonly defined in the period of the last war, but also to the removal of any person from the territory under any circumstances, whether after a legitimate judicial proceeding (e.g. an extradition request), or after proving that the residence was unlawful and without permission (see, for instance, Reg. v. Governor of Brixton Prison Ex parte Soblen (1963) [28], which uses the term deportation, and also Starke, supra, at 386), or for any other legal reason, based upon the internal law of the occupied territory.

According to the said argument, from the commencement of military rule over the territory there is a total freeze on the removal of persons, and whosoever is found in a territory under military rule cannot be removed for any reason whatsoever, as long as the military rule continues. In this matter there would be no difference between one dwelling lawfully or unlawfully in the territory, since Article 49 extends its protection to anyone termed a “protected person”, and this expression embraces, according to Article 4 of the Convention, all persons found in the territory, whether or not they are citizens or permanent residents thereof and even if they are there illegally as infiltrators (including armed infiltrators), as also follows from Pictet’s remarks (The Geneva Convention of 12 August 1949, Commentary, (Geneva, ed. by J.S. Pictet, vol. 4, 1958) 47).

The Petitioners’ submission rests essentially on one portion of the first paragraph of the Article, i.e. on the words “…transfers … deportations … regardless of their motive”. That is, according to this thesis, the reason or legal basis for the deportation is no longer relevant. Although the Petitioners would agree that the background to the wording of Article 49 is that described above, the Article must now be interpreted according to them in its literal and simple meaning, thus including any forced removal from the territory.

(j) I do not accept the thesis described for a number of reasons:

It is appropriate to present the implications of this argument in all its aspects. In this respect we should again detail what is liable to happen, according to the said argument, and what is the proper application of Article 49 in the personal sense and in the material sense.

Ratione personae is appropriate in reference to the term “protected person”, while ratione materiae relates to the following two foundations: “deportation” and “regardless of their motive”.

From the personal aspect, Article 49 refers-as was already mentioned, and as is universally accepted – to all those falling under the category of protected persons. This term is defined in Article 4 of the Convention, which in the relevant passage states:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power

of which they are not nationals.

(Emphasis added – M.S.)

The definition employs a negative test, i.e. for our purposes, anyone who is not an Israeli national and is found in a territory occupied by our forces, is “ipso facto a protected person. This includes an infiltrator, spy and anyone who entered the territory in any illegal manner. This interpretation is presented by Pictet in Commentary, supra, at 47, who in reference to this matter states:

The Article refers both to people who were in the territory before the outbreak of war (or the beginning of the occupation) and to those who go or are taken there as a result of circumstances: travellers, tourists, people who have been shipwrecked and even, it may be, spies or saboteurs.

(Emphasis added – M.S.)

The acceptance of the argument that the prohibition in Article 49 applies, whatever the motive for its personal application, means that if someone arrives in the territory for a visit of a limited period, or as a result of being shipwrecked on the Gaza coast, or even as an infiltrator for the purpose of spying or sabotage (and even if he is not a resident or national of the territory, for that is not a requirement of Article 4), it is prohibited to deport him so long as the territory is under military rule. In other words, the literal, simple and all- inclusive definition of Article 49, when read together with Article 4, leads to the conclusion that the legality of a person’s presence in the territory is not relevant, for his physical presence in the territory is sufficient to provide him with absolute immunity from deportation. According to this view, it is prohibited to deport an armed infiltrator who has served his sentence.

In order to demonstrate the implications of the Petitioners’ thesis, let us presume a set of theoretical circumstances: In Ex parte Quirin [27], the U.S. Supreme Court heard the appeals of six Germans, former residents of the United States, who landed on the American coast during World War II in order to carry out acts of sabotage and spying. They were all sentenced to death in 1942.

The event took place in the territory of the United States; but had a similar incident occurred in an occupied territory (e.g. one of the islands held by the United States following World War II as occupied territory) after 1949, and it was decided not to execute the terrorists but to deport them back, whether in the framework of an exchange or in some other way, this would constitute, as it were, a serious violation of the Fourth Convention (Article 147). It is superfluous to add that the return of a deportee to his country of origin is not always done in accordance with his wishes, and the post-World War II examples of this abound. There is no need to go as far as the United States in order to bring examples of infiltration for sabotage purposes, and that example was intended only to illustrate the point. In any event from the thesis offered by the Petitioners, it would follow that an infiltrator for sabotage purposes could not be deported before or after serving his sentence. The same would be true, according to this approach, of a person who came for a visit over the open bridges, yet stayed beyond the expiration of his permit. The literal and simple interpretation leads to an illogical conclusion.

(k) From here we shall proceed to the essence of the concept “deportation”, used in the Article. It is my opinion that, in accordance with the applicable rules of interpretation, one should not view the content of Article 49 as anything but a reference to such arbitrary deportations of groups of nationals as were carried out during World War II for purposes of subjugation, extermination and for similarly cruel reasons.

If, on the other hand, one accepts the proposed interpretation of the Petitioners, according to which deportation means any physical removal from the territory, then the above would apply, for instance, to deportation for the purposes of extradition of the protected person, for this too requires removing a person from the territory. Laws, judicial decisions and legal literature use, in the context of extradition, the term deportation to refer to the stage of carrying out the extradition or the rendition. A murderer who escaped to the occupied territory would have a safe haven, which would preclude his transfer to the authorized jurisdiction. As we have already shown, in light of what is said in Article 4 of the Convention, no relevance is attached to the nationality or domicile of a protected person, and the mere presence in an occupied territory of one who is not a national of the occupying state is enough to qualify him as a protected person. (The subject of the applicability of conventions in a territory under military rule is discussed, inter alia, in T. Meron’s illustrative article, “Applicability of Multilateral Conventions to Occupied Territories” in Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem, vol. 1 ed. M. Shamgar, 1982) at 217, 218 no. 8. The idea that a broad definition of Article 49 could prevent extradition is discussed in New Rules for Victims of Armed Conflicts by M. Bothe, K. J. Partsch, W. A. Solf (Hague, 1982) 693, in an examination of the Geneva Protocols of 1977.)

(l) Regarding the issue before us, the Petitioners have directed our attention to the remarks of Pictet in Commentary, supra, at 368, who adopts the literal interpretation, according to which all deportations are prohibited no matter what the reason. One should see this interpretive view, which would apply Article 49 to as broad a group of circumstances as possible, in its context and within its limits. The desire for a literal and simple meaning, which may find expression in scholarly opinions in professional literature, does not bind the courts. Not only are there other and contradictory viewpoints (see in this matter the remarks of Stone, which were quoted in Landau P.’s judgment in H.C. 698/80 [3]), but, more essentially, the court deals with the law as it exists and clarifies the meaning of a law or of a treaty, as the case may be, by adopting accepted rules of interpretation (see in this respect Lauterpacht, supra, at 80).

Were we to adopt the rules of interpretation used in our law[1], we could not accept the thesis proposed by the Petitioners. The Court would consider the flaw which the Convention was intended to correct (C.A. 31/63 [6] cited above); would examine the material context and the structure of Article 49, which in its other provisions refers clearly and openly to evacuations and transfers of population (Cr.A. 94/65 [8], C.A. 282/73 [10], and H.C. 47/83 [11]), would attempt to lift the veil from over the legislative purpose in order to adopt it as a standard of interpretation (C.A. 165/82 [9] cited above); and would be wary of and refrain from the adoption of a literal interpretation which is, so to speak, simple but in law and in fact so simplistic that it leads the language of the law or the Convention, as appropriate, to a range of applicability that confounds reason (Barak, in his above book, at p. 349), e.g. the absolute prohibition against the deportation of an infiltrator or spy, since deportations are prohibited, as it were, “regardless of their motive”.

Essentially, even reference to the rules of interpretation of international conventions does not help the Petitioners’ argument: For even the Vienna Convention does not submit to the literal interpretation, but rather sees the words of the convention “in their context and in the light of its object and purpose” (Article 31(1) of the Vienna Convention). The Convention permits us to examine the preparatory work and shies away from an interpretation whose outcome is “manifestly absurd or unreasonable”, and this description would apply at once to a prohibition against the deportation of an infiltrator (Lauterpacht, Brit. Y. B. Int’l L., supra, at 89).

Here it is appropriate to add that one may not adopt a broad interpretation conditionally, that is, an interpretation which invokes the broad application selectively on the basis of the results, and chooses between an outcome which is acceptable to the claimant and one which is not. Whoever accepts the literal and simple interpretation, according to which the term deportation includes any removal from the territory, and who sees the words “regardless of their motive” as a catch-all, forgoes thereby the possibility of selection, as this would lead to a contradiction; one who adopts an interpretation that

precludes discretion based on differentiating the motives, cannot then at his convenience accept only part of the prohibition and reject the rest.

Thus, one cannot remove the sting by saying that the language of Article 49 prohibits deportation, under Regulation 112 of the Defence (Emergency) Regulations, and which also based on the implementation of a valid municipal law, but allows, on the other hand, the deportation of infiltrators, spies and various enemy agents, or the extradition of criminals.

(m) Arising out of this answer to the Petitioners’ contention, is the opposite question, namely, what then is the alternate interpretation of the words “regardless of their motive”?

If we interpret the term “deportation” as referring to the mass and arbitrary deportations whore descriptions are familiar to us, then the words referring to the motive do not change the essence; the reference to some possible motive simply serves to preclude the raising of arguments and excuses linking the mass deportations to, as it were, legitimate motives. In other words, whatever the motive, the basic essence of the prohibited act (deportation), to which the words of Article 49 are directed, does not change. The opposite is true: there is ground for the claim that the reference to “some motive” is also among the lessons of World War II.

The words “regardless of their motive” were intended to encompass all deportations of populations and mass evacuations for the purposes of labour, medical experiments or extermination, which were founded during the war on a variety of arguments and motives, including some which were but trickery and deceit (such as relocation, necessary work, evacuation for security purposes etc…). Furthermore, the draftsmen of the Convention took into account the existing right of the military government to utilize manpower during wartime (see Regulation 52 of the 1907 Hague Regulations which deals with compulsory services, and Article 51 of the Fourth Geneva Convention which even today permits the subjection of protected persons to forced labor), but sought to clarify that mass deportation, as it had been carried out, is prohibited even when the

motive is seemingly legitimate, except in the event of evacuation in accordance with the qualifications set out in the second paragraph of Article 49.

It would be correct to read these words in the light of the remarks of Starke supra, at 510, according to whom one must refer to the “intention of the parties” and to the “meaning attached by them to words at the time”. In the light of these principles, one can attribute to the words a reasonable interpretation that accords with the other parts of the Article. It would not be superfluous to quote Starke again (at p. 511):

Treaties should, it is held, be given an interpretation in which the reasonable meaning of words and phrases is preferred, and in which a consistent meaning is given to different portions of the instrument. In accordance with the principle of consistency, treaties should be interpreted in the light of existing international law. Also applying both reasonableness and consistency, since it is to be assumed that states entering into a treaty are as a rule unwilling to limit their sovereignty save in the most express terms, ambiguous provisions should be given a meaning which is the least restrictive upon a party’s sovereignty, or which casts the least onerous obligations…

Moreover, even the above-mentioned guiding remarks of Professor Yasseen on the subject of interpretation, are incompatible with a literal, plain and expansive interpretation of the relevant paragraph.

To summarize, this court was competent to choose the interpretation resting upon the principles explained above, over the literal interpretation urged by the Petitioners. This court has done so in H.C. 97/79 [2], and I see no grounds for altering that conclusion, as its approach is acceptable to me. I also see no reasonable cause to deviate from the conclusion that served this court in H.C. 698/80 [3], and which treated the matter as conventional law.

Further on, I will address the supplementary argument raised by the Petitioners on this last issue.

4.(a) This court has indicated in its judgments that the above-mentioned Article 49 is within the realm of conventional international law. In consequence of this determination, the Petitioners have now raised a new thesis which holds that this court’s approach, which also forms the basis for the decisions in H.C. 97/ 79 [2] and H.C. 698/80 [3] is founded in error. This approach holds that the rules of conventional international law (as opposed to customary international law) do not automatically become part of Israeli law, unless they first undergo a legal adoption process by way of primary legislation.

This argument of the Petitioners does not directly relate to the interpretation of Article 49; but it does seek to attack that part of the reasoning in our previous decisions in which this court indicated that it saw no reason to delve into the question of the substantive interpretation of the above-mentioned Article 49, since the Article only reflects conventional international law, and as such, has not been assimilated into our country’s law.

(b) The Petitioners submit that not only does customary international law automatically become part of the municipal law (barring any contrary legislation), but that there are also parts of conventional international law which are automatically incorporated, without the need for adoption by way of legislation as a substantive part of Israeli municipal law. These are those parts of conventional international law which are within the realm of “law-making treaties”. In this argument the Petitioners based themselves on the statements of Lord McNair in two of his works (A.D. McNair, The Law of Treaties (Oxford, 1961) 89; A.D. McNair and A.D. Watts, The Legal Effects of War (Cambridge, 4th ed., 1966) 371); on a judgment of the Court of Appeals in the matter of Porter v. Freudenberg [29]; on statements in B. Rubin’s article, “The Incorporation of International Treaties into the Country’s Law by the Courts”, 13 Mishpatim (1983-4) 210 and on Professor A. Rubinstein’s article, “The Changing Status of the Territories…”, 11 IyuneiMishpat (1985-86) 439, 446 [see English version in 8 TeI- Aviv University Studies in Law (1988), 59]. They have also referred to portions of two articles which they believe lend support to the above-mentioned thesis: Professor H. Lauterpacht, “Is International Law A Part of the Law of England?” 25 Transactions of the

Grotius Society (1939) 51; Professor F.A. Mann, “The Enforcement of Treaties By English Courts”, 44 Transactions of the Grotius Society (1958-59) 29.

5. (a) My conclusions, in answer to these arguments, have a threefold thrust:

(1)                               The suggested thesis does not accord with the accepted legal approach in Israel.

(2)                              One discerns no reasonable ground for changing or deviating from the existing legal situation, which in the light of the existing constitutional structure, is also the desired legal situation.

(3)                              The legal situation in England, to which the Petitioners sought to refer us (whether, in the Petitioners’ words, as a binding prototype or for purposes of comparison and persuasion), is not unequivocal, and does not necessarily coincide – certainly not in everyone’s opinion – with the view that the Petitioners suggested we adopt. There is much literature pointing to a lack of clarity on this subject. Even in the above two articles (those of Professor Lauterpacht and Professor Mann), the scholars’ dispute on the subject is presented.

Let us examine the subject in the above order.

(b) The legal situation in Israel. Israeli law on the relationship between international law and internal law – that is in order to decide whether a given provision of public international law has become part of Israeli law – distinguishes between conventional law and customary law (Prof. Y. Dinstein, International Law and The State (Schocken and Tel- Aviv University, 1971) 143). Prof. Dinstein refers in this matter mainly to Cr.A. 174/54 [12]; Cr.A. 336/61 [13]; C.A. 25,145,148/55 [14], Cr.A. 131/67 [15].

The view that reflects the accepted opinion in this court’s decisions on the subject, was also presented in H.C. 69,493/81 [16], at p. 233 ff.; in the remarks of Barak J. in H.C. 393/82 [17], 793 and in the remarks of Witkon J. in H.C.390/ 79 [18], 29. See also: M. Shamgar, “Legal Concepts and Problems of the Israeli Military Government – The Initial

Stage”, Military Government in the Territories Administered By Israel 1967-1980, supra, at 13, 47, 64, 69 and the above-mentioned article of Professor Dinstein, at 937, the last paragraph.

According to the consistent judgments of this court, customary international law is part of the law of the land, subject to any contradictory provision in Israeli legislation.

In Cr.A. 174/54 [12], mentioned above, Cheshin J. with whom Witkon J. concurred, spoke about “the customs of international law [i.e. customary international law -M.S.], as part of the law of the land” (ibid., p 17). In Cr.A. 336/61 [13] – following Motion no. 41/49 [19] at 145-6, and the English cases in the matters of West Rand Gold Mining Co. v. Rex [30], at 406-7, and The Cristina [31] – the application of rules of international law accepted by the international community was recognized, and the rules were proved to be thus accepted. As Professor Dinstein has written in his above-mentioned book (at p. 146) regarding the meaning of what was said in that judgment:

The ruling is that rules of (customary) international law are automatically assimilated into Israeli law and become a part thereof; however, in cases of a frontal collision between such rules and the statutory law, the statutory law takes precedence.

Lord Alverstone expressed the same idea in the West Rand case mentioned above when he said that in order to be considered a part of English law, a rule of international law must:

…be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognised or acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it.

That is, in fact, a standard similar to the one adopted in the definition appearing in Article 38(1)(b) of the Statute of the International Court, which deals with international custom.

In the Cristina case mentioned above, Lord MacMillan demanded – as a condition for the adoption of a rule of international law-that it should have-

the hall-marks of general assent and reciprocity.

These too are accepted indicators of customary international law.

(c) The status of conventional international law vis-a-vis our law is examined in C.A. 25,145,148/55 [14], where, Berenson J. states at p. 1829:

The Rhodes agreement is a treaty between the State of Israel and another state. Whatever the validity of such an agreement may be in terms of international law, it does not constitute a law to which our courts will have recourse or to which they will ascribe validity. The rights that it confers and the duties that it imposes are rights and duties of the states that entered into the agreement and its implementation is solely in their hands through the special means of implementing international treaties. This type of treaty is not in any way subject to the jurisdiction of the domestic courts, unless and to the extent that it, or the rights and duties deriving from it, have been refined in the melting pot of the state’s legislation and have been shaped into binding law. In this sort of case, the court does not, in actual fact, require the agreement as such, but rather the Law which affixes its imprint on the agreement and breathes into it legal life in terms of our municipal law. From this it also follows that where the Law and the agreement are incompatible, even though it is clear that the Law is intended to activate and implement the agreement, the courts will prefer the Law, which alone binds them, and by which alone a judgment can be given. Furthermore, even when it is stipulated in an interstate or international agreement that defined rights are to be conferred upon certain people, the obligation under the agreement remains in the realm of an international obligation of the state and no more. The persons concerned do not acquire for themselves any actual right based on the agreement and cannot enforce this kind of a right in court, either as direct beneficiaries of the agreement or in any other way.

And further at p. 1831:

On the face of it, it seems that in the United States the practice is otherwise (and in other countries with a similar constitutional framework), but in fact that is not so. In the United States Constitution there is an express provision which bestows the status of “supreme law of the land” upon any treaty lawfully concluded in the name of the United States. For this reason federal and state courts uphold treaties and even give them precedence over other laws of the country, where those laws do not accord with the treaties. That is a direct result of the above-mentioned constitutional situation. In essence then, U.S. courts also act according to those same universal principles noted above. They also execute treaties benefiting individuals, where rights are granted to them that are realizable in court, but only in accordance with a provision of their own law; however,: because of the existence of that general provision in the U. S. Constitution, there is no need for a special provision for each individual treaty. See Edye v. Robertson, (1884), 112 U.S. 580; 5 S.Ct. 247, 254.

The clear meaning of these remarks is that the adoption of international treaties – in order to incorporate them as part of internal law and in order to render them enforceable through the national tribunals – is conditional upon a prior act of the legislator. As we shall see, international treaties may constitute a statement of the valid customary law – but then their content will be binding by virtue of the said customary status of the rule stated therein and not by virtue of its inclusion in the treaty. We shall return to this subject later in the discussion.

Based on what was said in C.A. 25,145,148/55 [14], Prof. Dinstein remarks in his book, op. cit., p. 147:

…The rules of conventional international law are not automatically incorporated into Israeli law, rather there is a need for special and explicit complementary legislation in order for them to become part of Israeli law.

In Cr. A. 131/67 [15] Cohn J. reiterates (at p. 97) that-

…No international treaty has legislative force so long as such status has not been granted in an explicit Law of the Knesset….

(d) From the remarks of Cohn J. in C.A. 65/67 [20] (see also H.C. 103/67 [21]), one might surmise that there are rules of conventional international law which are expressed in law-making treaties and which automatically become part of municipal law without the requirement of any prior legislation. Such a conclusion is founded in error. We accept the relevant classification between declarative and constitutive treaties, and one must be exact and distinguish between them. To hold the fact that an international conference or the United Nations General Assembly approves the wording of a proposed treaty and invites states to join it, is proof of the treaty’s declarative nature, is less than accurate. This is clarified by Prof. N. Feinberg in “Declarative Treaties and Constitutive Treaties in International Law”, 24 Hapraklit (5728 – 1967/8) 433, 435:

This thesis [according to which a general norm of international law is created in the above-mentioned way – M.S.], is very far-reaching, as it sees the work of codification in the area of international law, conducted today in the framework of the United Nations, to be declarative codification. It is possible that Justice Cohn was influenced here by the British approach to codification.. .however, this is not valid in international law, in which there is a basic distinction between a declarative treaty that transfers existing norms from the realm of customary law to that of conventional law, and a constitutive treaty that creates entirely new norms that are indeed founded in the conduct of states, yet the latter remains for the time being in the nature of a usage or practice, not yet having crystallized into a customary norm.

And, at p. 437:

Every “accepted rule of international law” or, in other words, “every general norm of international law”, is rooted in international custom.

Accordingly, Professor Dinstein summarizes his examination of C.A. 65/67 [20] by stating (op. cit. at p. 148):

In anything concerning declarative law-making treaties, the rules of international law will be automatically incorporated into the internal law, not because it is stated in the treaty, but in spite of it being stated in the treaty. They will be automatically incorporated, since the treaty reflects only existing customary international law… Even if the Supreme Court erred in the specific application of the above general principle [the reference is to C.A. 65/67 [20] – M.S.], that does not detract from or flaw the principle itself.

To summarize, according to the law applying in Israel, an international treaty does not become part of Israeli law unless –

(1)     its provisions are adopted by way of legislation and to the extent that they are so adopted; or,

(2)    the provisions of the treaty are but a repetition or declaration of existing customary international law, namely, the codification of existing custom.

This is the way in which Israel has approached the provisions of international treaties which are indicative of “law-making treaties” – as in the enactment of the Crime of Genocide (Prevention and Punishment) Law, 5710-1950, which was passed pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide; the Air

Navigation (Security in Civil Aviation) Law, 5737-1977, which was passed pursuant to the 1970 Hague Conventions against the seizure of aircrafts and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; the Sale (International Sale of Goods) Law, 5731-1971, enacted pursuant to the 1964 Hague Convention Relating to a Uniform Law on the International Sale of Goods; and the Immunity and Rights (International Organisations and Special Missions) Law, 57431983, regarding which I would refer to the explanatory notes in the International Organisations (Status) Bill, 5740-1980 (enacted as the International Organisations (Status) Law, 5740­1980 and subsequently replaced by the above-mentioned Law of 1983). I mention these laws merely as oft-cited examples of lawmaking treaties (see for instance Starke, supra, at VII, 2).

(e) When applying our above remarks to the issue before us, we must remember that Article 49 has been categorized in our judgments as conventional law which does not express customary-international law. Thus it was held by Landau P. in H.C.698/80 [3] that (p. 627)-

…Article 49(1) of the Geneva Convention (which) is for now regarded only as a provision of conventional international law, upon which the individual cannot found his petition in a court adjudicating according to the positive law of the forum country.

As regards Article 49 not reflecting customary law, Landau P. adds at p. 629:

In fact the occupation forces in the Rhineland in Germany, after World War I, used the sanction of deportation from the occupied territory against officials who broke the laws of the occupation authorities or who endangered the maintainance, security or needs of the occupying army: Fraenkel, Military Occupation and the Rule of Law, Oxford University Press, 1944. Under this policy the French deported during the armistice following that war 76 officials and the Belgians – 12, and during the dispute over the Ruhr (1923) no less than 41,808 German officials were deported (ibid., at 130-131). In the face of these facts, it is clear that the prohibition against the deportation of civilians did not constitute a part of the rules of customary international law accepted by civilized states, as if the Geneva Convention simply gave expression to a pre-existing law.

According to Fraenkel, to whom Landau P. refers above, the deportee had no right of appeal whatsoever, neither before a committee nor before a court.

6. (a) I have read the interesting articles, cited above, of Rubin and of Prof. Rubinstein at p. 446, to which we were referred by the Petitioner, but I have not been convinced that we should deviate from the existing and accepted law, as expressed in the rulings of this court, on the methods of incorporating various rules of public international law into our legal system. Moreover, the existing law adequately reflects not only the prevailing, but also the desired situation, in terms of the power of the state to shape its law through its own independent legal tools. Adoption of the viewpoint suggested in the Petitioners’ arguments, according to which there is no need for Knesset legislation to assimilate into our law a rule of conventional public international law which finds expression in an international treaty joined by Israel, and which is not in the nature of codification of an existing customary rule, would, in fact, grant the government legislative power, since according to our constitutional structure, the government concludes and ratifies international treaties without any approval from the Knesset. In light of such outcome of the suggested thesis, a twofold doubt arises as to whether the described interpretive innovation is indeed desirable from the viewpoint of sound administration and the rule of law.

For that reason Prof. Feinberg, in his above-mentioned article (at p. 442 n. 77), links the change in the status of law-making treaties to a corresponding change in the ratification methods. This is what he says:

In fact, there is no chance of an arrangement under which the courts in Israel would be empowered to apply self-executing international treaties without the need for an act of adoption or inclusion, as long as there is no solution to another question, which is inseparably linked, and that is the question of the status of the Knesset regarding the entire subject of international treaty ratification. For in any such arrangement, if at the same time the power of ratification were to remain under the sole authority of the executive, the result would be a delegation of a quasi-legislative power to the executive and a blow to the principle of separation of powers. And perhaps, there is room to assume that in this field too, the tradition that has developed until now will end and the Knesset will be given the special place that the legislature is entitled to claim for itself in a proper democratic government.

Prof. Dinstein writes on this aspect in his book cited above (at p. 147):

The power to make treaties in Israel – as in England – is given to the executive authority … and were there to be automatic incorporation of conventional international law into the existing law in Israel, it could confuse the complicated matter of separation of powers. The existing situation allows the Knesset (the legislative authority) to check the government (the executive authority) and to prevent a mixing of authorities.

(b) To summarize this point: the system suggested by the Petitioners would grant the executive the power to infuse binding legal provisions into our legal system, without recourse to the legislator. This can even be learned from what was written in the above- mentioned article of Prof. Lauterpacht (in 25 Transactions of the Grotius Society, supra, at 51). The Petitioners, basing themselves on his remarks, tried to convince us of the existence, as it were, of an accepted English thesis, uniform and clear, by which law­making treaties automatically become part of the law of Britain. Prof. Lauterpacht states in the above article at p. 74:

If a treaty ratified and internationally valid is without force within the State unless supplemented by legislative action, then, it is asserted, International Law embodied in that treaty is not part of the law of the land. This is entirely true. The rule is obviously in the nature of an

exception to the principle of incorporation. But the reasons for it lie not in any subtle intention of English Courts to take away with one hand what they grant with the other, but only and exclusively in the exigencies of British constitutional law and the division of powers within the State. It is a rule of British constitutional law that the conclusion and ratification of treaties are a prerogative of the executive. In other countries, such as the United States, the concurrence of the Legislature, or of a part thereof, is necessary for the valid ratification of a treaty. This is not the case in Great Britain. A treaty becomes binding for this country as soon as it has been finally ratified by the Crown. This being so, it might be possible for the Crown to impose burdens upon the subject, and to legislate for him, indirectly, without the concurrence of Parliament, by means of concluding a treaty (X). The existing rule which requires in such cases an enabling Act of Parliament removes that possibility.

And in footnote (x):

(X) The case of State of Missouri v. Holland, United States Game Warden, decided in 1920 by the Supreme Court of the United States, is an interesting example of a government arming itself, by means of a treaty, with powers which it did not apparently otherwise possess. In 1915 the Congress of the United States passed an Act concerning the protection of migratory birds. That act was declared unconstitutional on the ground that it interfered with the rights reserved to the member states. Thereupon the United States concluded a treaty with Great Britain for the protection of migratory birds. The Supreme Court held that a statute providing for the enforcement of that treaty was constitutional: 252 U. S. 416; Annual Digest, 1919-1922, Case No. 1. The decision of the Judicial Committee of the Privy Council in Att. Gen. for Canada v. Att. Gen. for Ontario and Others, 53 T.L.R. 325, is also of interest in this connection. The question was, essentially, how far can Canada enact labour legislation, in pursuance of international

labour conventions, in matters reserved by the constitution to the provinces?

(c)      Another reason for the objection to the automatic adoption of a treaty which does not reflect customary international law, lies in the substantive and basic difference between international law and municipal law, a matter which more than once has eluded the scrutiny of jurists interpreting rules of international law. Moreover, dependence on the automatic application of law-making treaties would subordinate Israeli law to provisions which had not been adapted to the conditions of the country, its interests, and its residents. In this context one must consider the fact that among the treaties presented in the professional literature by those jurists adhering to this thesis, and brought as leading examples of law-making treaties having immediate application, are treaties adopted by the United Nations and the International Labour Organization. While wanting to refrain from generalizations, the idea that the majority in these international bodies could automatically impose upon us provisions of binding law, which would be in force unless expressly annulled by the Knesset, is not attractive.

Also the attainment of clarity in determining the substance and limits of the law will necessarily be obstructed if we adopt the suggested approach. It is generally agreed that an a-priori classification of the treaties is necessary in order to distinguish between those which apply automatically and those which require enabling legislation. Rules of differentiation and distinction are not defined clearly and simply. If we return , for example, to the remarks of Prof. Lauterpacht, he determines that the said division is “not clearly defined” (ibid., at 75), and that is one of the reasons that the subject is marked by vagueness, dissention and a lack of new and clear distinctions. In any event, the inclusion of an uncertain and unclearly defined element in our legal system does not seem desirable.

(d)      The problematic nature of the issue, partially presented above, did not elude the English courts, and a striking, even blunt expression thereof is found in the remarks of Lord Atkin in Chung Chi Cheung v. The King [32], when he said (at 167-168):

It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules on our own code of substantive law or procedure.

Professor Lauterpacht called this approach of the courts in his country “judicial hesitancy” and sought to criticize it; however, we are not engaged here in an academic examination of the relative merits and faults of the different legal approaches, but only with the search for specific answers required for our issue, namely :

(1)                           Is there a basis for the argument raised before us that England today is governed by a different legal approach than that to which Israeli courts have turned and referred in developing our legal outlook; and –

(2)                            Is there indeed room today for a change, by way of legal interpretation, in the legal principles that we apply.

What we have said above will suffice to answer these questions in the negative.

7.(a) The third question which we posed above, at the outset of our discussion of the Petitioners’ stated argument, concerns the legal situation in England. This subject has been largely covered above, and therefore we will deal with it here only in a nutshell.

The two articles – that of Professor Lauterpacht and that of Professor Mann – do not point to the existence of a uniform and accepted thesis regarding the automatic adoption of law-making treaties. The main substance and purpose of these articles is the learned writers’ confrontation with the various views, which give expression to the approach that contradicts the one suggested to us.

The lack of a uniform approach, as evidenced in Professor Lauterpacht’s article, has already been referred to above. Professor Manns’s point of departure, as presented in his article above, is expressed in the following remarks (at pp. 3031):

It is a commonplace that a treaty as such cannot be a source of English law or, in other words, impose duties or confer rights on anyone except the Crown in its international relations. Were this not so the Crown would have the power of legislation. Consequently, in order to become binding upon subjects a treaty must be incorporated into the law of England by parliamentary legislation [Emphasis added – M.S.] What is sometimes loosely referred to as “ratification” will not be sufficient. Parliament may approve the conclusion of a treaty and it may even pass legislation connected with a treaty, but a treaty cannot become part of English law otherwise than by the strictly legislative process. Thus the various treaties which are known as “Documents relating to the Termination of the Occupation Regime in the Federal Republic of Germany: were ratified and approved by Parliament after they were signed at Bonn in May 1952 and Paris in October 1954, yet they do not form part of English law except in so far as the German Conventions Act, 1955 adopts certain of their provisions. The legal position is sumarised by a dictum of Lord Atkin which must today be regarded as locus classicus:

Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligation, if they entail alteration of the existing domestic law, requires legislative action.

And at p. 45:

Internationally a treaty to which the Crown is a party binds the Crown even if there has been no ratification of any kind. This is elementary and probably not denied, though sometimes concealed by loose

formulations. Thus, when it is said of a treaty to which the United Kingdom is a party that in order to be binding it requires legislation, what is referred to is only the binding character of the treaty in municipal law.

And at p. 45:

… A treaty to which the legislature has failed to attribute the force of law cannot be given that very same force by the judiciary. This point is so fundamental that it necessarily imposes severe limitations upon the ambit within which treaty obligations may constitute a head of public policy. The mere fact that a particular decision would be inconsistent with the terms of a treaty concluded by the Crown and, therefore, would involve a breach of this country’s treaty obligations cannot lead to a decision in the opposite sense. (Emphasis added – M.S.)

We see no basis for drawing the conclusion that a defined and accepted thesis has been developed which establishes the automatic adoption of law-making treaties under English common law.

The reference to the question of the application of the laws of war in the domestic English law also does not breach the existing reservations outlined above, but there are those who see the authority of the Crown to conduct war, to exercise powers to this end and to conclude treaties (for instance, armistice agreements) as part of the common law. Says Prof. Mann (ibid., at p. 37):

It would seem to follow that, if and in so far as the prerogative rights of the Crown in war-time prevail, the Crown can, by treaty no less than by proclamation, alter the common law, for to that extent it is in pursuance of the existing domestic law that the Crown alters it. (Emphasis added – M.S.)

In discussing the above-mentioned Porter case [29], he seeks to discern by way of conjecture what thesis underlay the approach of the judges who weighed there the matter of the application of Regulation 23(h) of the Hague Regulations, 1907, in the English courts. He remarks at p. 38:

The explanation can only be found in the view that, in the absence of any relevant restriction by Parliament of the Crown’s prerogative in war-time, the Crown could by treaty alter the common law.

And in note 28 he adds:

Lord McNair, British Year Book of International Law 1928, 63 sqq. and Law of Treaties, p. 337, seems to think that the Hague regulations constitute a treaty affecting belligerent rights and therefore bind the subject. Similarly, Wade & Phillips, Constitutional Law (4th ed. 1950) assert the binding character of treaties affecting belligerent rights, because waging war comes under the prerogative. There is probably not much difference between these formulations and the statement of the rule suggested in the text. However, the conception of belligerent rights originates from public international law and is not germane to English constitutional law. The latter regards treaties as binding only if and in so far as the prerogative of the Crown prevails. If it does not prevail even treaties affecting belligerent rights cannot bind the subject. (Emphasis added – M. S.)

Similarly see McNair and Watts, supra, at 371.

I do not believe that conjecture regarding the specific English constitutional situation should serve as a basis for converting the clear and well-defined Israeli legal situation to the system suggested by the Petitioners.

(b) In England a law was passed in order to implement the provisions of the Fourth Geneva Convention (The Geneva Conventions Act, 1957). On the face of it, this would appear to support the thesis that in England as well legislation is necessary in order to implement the Geneva Conventions in internal law. In Rubin’s above-mentioned article, it was pointed out in relation thereto, that the purpose of the legislation was limited to the application of the rules of the war crimes convention and no more. Even this interpretation, according to which legislation is necessary only for creating provisions to enable legal proceedings in the national courts, does not necessarily support the thesis proposed to us. Moreover, the fact that the Act incorporated only provisions which are applicable in the kingdom does not mean that the rest of the provisions, dealing with the conduct of armed forces in an occupied territory, have instantly become rights enforceable in an English court. There is a question, for example, of the point of time when the stated system of rights and duties consolidates according to the proposed legal thesis, whether immediately upon ratification of the treaty at the international level, or perhaps at a later stage? And if the second possibility is preferred, the question remains – what is this later stage? As already hinted, a derivative question is why parliamentary legislation is necessary with regard to part of the treaty, in order to bind the courts, and whether in terms of such legally binding status, there is a a difference between the part that was legislated and the part that was not included in the legislation. These are interesting questions worthy of examination, but as far as we are aware, there is no uniform view on the subject in Britain either.

I do not see, therefore, a need to enter into a discussion of the question, although interesting per se, whether there is a basis for adopting the conclusion reached by Lord McNair regarding the meaning, for purposes of the issue before us, of the above-mentioned judgment of the English appeals court in the Porter case [29], according to which the English courts were basically prepared to apply the provisions of the Hague Regulations even without changes in internal English law (McNair, supra, at 89, McNair and Watts, supra, at 371).

In the portion of the Porter judgment ([29] at 878), that is in my opinion central to our issue, the argument raised before this court is presented (the question of the application of Regulation 23 (h) of the Hague Regulations as part of the common law), and the conclusion is that there is no need to resolve the question, since Regulation 23 (h) of the Hague Regulations in no way sought to change the law applying within England itself.

It remains an open question, it seems, whether the court was prepared to change the interpretation of the existing municipal law on the issue of locus standi before an English court, without any internal legislation and based solely on the Hague Regulations. From the following remarks in Porter (129] at 878), McNair, supra, concluded that the court was prepared to view the Hague Regulations as part of the common law:

It is impossible to suppose that this means (as it must do if the effect of the paragraph (h) [the reference is to rule 23(h) of the Hague Regulations – M.S.] is to abrogate the law existing hitherto in England and to give an alien enemy the position of a persona standi in judicio in English Courts of Law) that the War Office of Great Britain shall in the present war for this purpose issue instructions to Sir John French, commanding our land forces in the field, forbidding him to “declare” that the rights of alien enemies – Germans, Austrians, or Turks – to institute legal proceedings in the High Court of Justice in London are suspended or inadmissible. And yet this absurdity seems necessarily to follow from the scheme of the Convention as applied to paragraph (h) if the interpretation of this paragraph is that which is contended for by those who find in it an abrogation of our law, which hitherto has not given to an alien enemy the position of a persona standi in judicio.

Our view is that article 23(h), read with the governing article 1 of the Convention, has a very different and very important effect, and that the paragraph, if so understood, is quite properly placed as it is placed in a group of prohibitions relating to the conduct of an army and its commander in the field.

With all due respect to the learned writer, I would have refrained from expressing so certain an opinion based solely upon the remarks cited above.

(c) As already indicated, the views on interpretation are not uniform. Thus, for instance, O’Connell states (op. cit., at p. 24):

It is sometimes suggested that there is a type of treaty which is properly legislative, in the sense that it lays down the law where none existed before, tout d’un coup [emphasis in original – M. S.] It is important that this proposition be carefully examined. True, one may cite innumerable conventions, mostly multilateral, which are now taken as international and not contractual law. One may cite the Slave Trade Conventions, the Declaration of Paris, 1856, between the combatants in the Crimean War which put an end to privateering, and most notably, of course, the Hague Conventions of 1899 and 1907, and the Geneva Conventions. But the point is whether nonsignatory and non-accessionary States were automatically bound by the provisions of these conventions as soon as they became operative, or whether they became bound by the rules they contain at a subsequent date when it was accepted that these rules had become part of international custom. The latter is the correct interpretation, and it is clear, then, that it is custom embodying the treaty, and not the treaty itself, which creates law as distinct from contractual rules. (Emphasis added – M.S.)

The learned writer refers in his above remarks to the extent a legal obligation is binding upon states which did not sign the convention; by way of contrast, countries, which are signatories to the treaty, are obligated to adhere to their said obligations in relations inter se; however, in the system of relations between the individual and government, one can lean in court only upon rules of customary public international law. This approach formed the basis for Witkon J.’s remarks in H.C. 390/79 [18], when he said (at p. 29):

One must view the Geneva Convention as part of conventional international law; and therefore – according to the view accepted in common law countries and by us – an injured party cannot petition the court of a state against which he has grievances to claim his rights. This right of petition is given solely to the states that are parties to such a

convention, and even this litigation cannot take place in a state’s court, but only in an international forum.

(d)       Mr. Rubin questions in his above-mentioned article, whether grounds exist to assume that the Hague Regulations were considered at the time of signing of the Convention as merely an international obligation undertaken by the signatory state to the Regulations, and that only subsequently did they turn into binding customary international law and as such a part of the internal law. The answer to this question emerges, in my view, from the following statement in the judgment of the International Tribunal in Nuremberg (I. M. T. Judgment, supra, at 65):

The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention (Hague convention Concerning the Laws and Customs of War on Land) expressly stated that it was an attempt “to revise the general laws and customs of war” which it thus recognised to be then existing, but by 1939 these rules laid down in the convention were recognised by all civilised nations and were regarded as being declaratory of the laws and customs of war… (Emphasis added – M.S.)

In other words, there has been development as regards the status of the Hague rules as customary law in the period that has elapsed since the signing of the Convention in 1907.

(e)      To sum up the discussion regarding the third question posed above – a change in the English approach – even if shown to have occurred – need not influence the adoption of an identical approach by us. For as has already been mentioned, the context and constitutional structure in Israel is different, and there is no justification in Israel’s present constitutional dispensation for abandoning an approach that has crystallized in Israel since the establishment of the state. Moreover, there is no ground for concluding that the argument regarding the existence of a uniform and monolithic legal approach in England has been thoroughly substantiated.

8. Often raised, peripherally to the discussion of the legal problems regarding the applicability of conventions, is the matter of the status of a customary rule of public international law in our internal law. The question of the nature and identification of a customary rule was discussed in detail in H.C. 69,493/81 [16] at pp. 238-242, and I therefore will not reiterate it here. However, it is worth taking note and repeating certain words of caution, which were included in the above-mentioned judgment:

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

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

9. In H.C. 27/88 the Petitioner again raised the argument that Regulation 112 of the Defence (Emergency) Regulations is not in force in Judea and Samaria.

This legal argument too has already been discussed and rejected in H. C. 513, 514/85 and M.A. 256/85 [5] and earlier in the above-mentioned H.C. 97/79 [2]. As stated, I see no reason to add to what has already been said in the matter.

10. Learned counsel for the Petitioner in H.C. 845/87 raised, toward the close of the hearing, a new contention, which was not mentioned in the petition and in the arguments voiced before us in the course of the hearing. In his opinion, the Military Commander no longer has any authority to direct the deportation of the Petitioner under Regulation 112 of the above-mentioned Regulations, since with the signing of the Peace Treaty with Egypt, the Military Government terminated and the Respondent no longer possesses the legal authority to issue such an order. Petitioner’s counsel did not take the trouble, I regret, to base his contention on a reasoned legal argument. Thus, he did not explain which provisions of the Peace Treaty would lead us to the above conclusion, or what rules of law sustain them.

I find the above-mentioned contention unacceptable and the reason is both short and simple. The Treaty of Peace between Israel and the Arab Republic of Egypt was accompanied by an additional agreement between the states that concluded it namely A Framework for Peace in the Middle East Agreed at Camp David. According to this agreement, it was determined, inter alia, that further developments would ensue in the deployment of the Military Government at a certain stage, which need not be spelled out here, in the implementation of the said agreement. What emerges from this agreement is that as long as the said stage has not arrived, the Military Government continues to function. There is no indication that the powers which signed the Peace Treaty had decided upon the abolition of the Military Government either at that time or at a subsequent stage prior to this time.

This court has already ruled that as long as the military force exercises control over the territory, the laws of war will apply to it (H.C. 102,150,593,690/82; 271/83, Tzemel and Others v. Minister of Defence, [22] at 373):

The application of the provisions of the laws of war regarding the powers and obligations of a military force that has taken effective

control of an area lying beyond the jurisdiction of its country’s applicable law, can also be the result of belligerent action which provides the military force with control over a state against which it is not waging a war.

The court further stated at p. 374:

…even where the territory is seized from a country with whom a state of belligerency exists (an armistice agreement does not terminate a state of belligerency) at the time the military forces enter and seize effective control. If an agreement was subsequently signed, such as an agreement terminating the state of belligerency, the transfer of the territory, the powers, or both, to the previous authority is disposed of in accordance with the terms of the said agreement. However, as long as the military force exercises control in the territory, the powers granted it and the limitations imposed upon it by virtue of the laws of war, remain in effect. This, of course, is entirely subject to the arrangement agreed upon by the duly authorized political bodies.

See also H.C. 574/82 [23].

For our purposes it similarly emerges that, irrespective of the fact that a peace treaty has been signed, so long as the Military Government has not left the Gaza Strip and the relevant parties have not agreed otherwise, the Respondent continues to hold the territory by force of belligerent occupation and is subject to the laws of customary international law that apply in war-time.

11. Let us now turn to the specific submissions of each of the Petitioners:

12. H.C. 785/87: (a) The Petitioner Abd al Nasser Abd al Aziz Abd al Affo, born in 1956, is a resident of the town of Jenin.

The deportation order was issued by Maj.-Gen. A. Mitzna, Commander of I.D.F. Forces in Judea and Samaria on 3 September 1987, while the Petitioner was serving a prison sentence that was to terminate on 20 September 1987. The full text of the order reads as follows:

By virtue of my authority under Regulation 112 (1) of the Defence (Emergency) Regulations, 1945, and my authority under any law or security legislation, and whereas I believe the matter is necessary to ensure the security of the Region, public welfare and public order, I hereby order that:

Abd al Nasser Abd al Affo Muhamad Abd al Aziz , I. D. no. 94808545, born in 1956, from the town of Jenin, be deported from the Region.

Abd al Nasser Abd al Afro Muhamad Abd al Aziz is a senior operative in the “National Front” organization, who has been sentenced three times in the past to prison terms for his terrorist activity. He is about to finish a third prison term of five years and three months. During his stay in prison, he assiduously continues his hostile activity in order to further the purposes of the organization.

(b) After the deportation order was served, the Petitioner applied to the Advisory Committee which operates under Regulation 112 (8) of the above-mentioned Regulations (in a number of documents and previous petitions, this body is called an “Advisory Board”). The Committee was composed of the President of the Military Courts in Judea and Samaria, as chairman, and two additional officers holding the rank of Lieutenant- Colonel. The Committee heard the Petitioner and his learned counsel and also the Respondent’s counsel in the course of four sessions, during which it was also furnished with the information on which Maj.-Gen. Mitzna relied in reaching his decision. Part of this information was unclassified, and part was classified for security reasons and therefore not brought to the attention of the Petitioner. The Respondent was also presented with a long list of written questions by learned counsel for the Petitioner, which the Respondent

answered, as the Committee noted in its decision, subject to the security limitations. These questions and answers were also brought before the Committee. The detailed and reasoned decision of the Committee given on 28 October 1987, stated, inter alia:

According to the statement of the Respondent’s counsel, the activity of the Applicant began in 1972 when he was studying in high school. He was involved in the theft of a mimeograph machine which was used for duplicating posters. In the years 1975-76, he took part in inciting students to demonstrate in Jenin. In December 1976 he was detained for questioning and in the course of it he admitted to organizing demonstrations and incitements. He was sentenced to three years in prison, of which seven months were actual confinement. In February 1979 he was again arrested and he admitted recruiting people for the Popular Front organization. He was tried in Case Sh. 7033/79 and was sentenced to three years in prison, of which nine months were actual confinement. In April 1980 he took part in elections at Najah University as a representative of the Popular Front. In June 1980 he incited youths to engage in a demonstration, in the course of which stones and bottles were thrown at I.D.F. soldiers and a Palestinian flag was flown. In November 1980 he took part in a student strike against the activities of the Military Government in Ramallah. In November 1980 he participated actively in disturbances, in the course of which road blocks were erected and stones were hurled at I.D.F. soldiers. He acted similarly a month later. Since then and on various additional occasions up until July 1982, as detailed in the unclassified material, the Applicant was reported to have been active in recruiting students for Najah University from among the supporters of the National Front organization (1980). He incited a strike to halt studies and delivered speeches on behalf of the Popular Front. He was an organizer of demonstrations and strikes. At a number of these disturbances, road blocks were erected and rocks were hurled at I.D.F. forces and once at an Israeli bus. In one of the gatherings held in honour of Fatah Day

(January 1982), the applicant spoke of revolution and of the unification of all the organizations.

In July 1982 the Applicant was arrested and in the course of his interrogation admitted that he was recruited to the Popular Front. In the charge sheet against the Applicant in August 1982, it was stated that beginning in February or March 1981, the Applicant renewed his active membership in the terrorist organization called the “National Front”. It was also stated that the Applicant was appointed to head the political wing of that organization at Najah University in Nablus. Further, it was stated in that same indictment that at the end of 1981, the Applicant recruited two additional members to the organization. The Applicant admitted what was attributed to him in the indictment. He was convicted and sentenced to three years of actual confinement. Additionally, his suspended sentence of two years and three months was activated to be served consecutively. Thus, the Applicant was to serve a sentence of five years and three months actual imprisonment. This is the penalty which the Applicant is about to complete serving in the coming days.

In its sentence, which was submitted to the Advisory Board and marked Exhibit 1, the court noted as follows:

Barely a year and a half has elapsed since the accused was released from prison, and the accused has again engaged in crime and committed the violations which are the subject of this case. This court has decided on more than one occasion to exercise severity in the cases of recidivist offenders who did not learn the proper lessons from the sentences imposed on them in the past, did not fulfil the conditions of the suspended sentences and returned to their errant ways. More rare is the case of an accused who has already been sentenced twice in the past for security offences, yet

is ready to carry on and to continue his association with a hostile organization, compounding his transgression by recruiting others.

As may be recalled, it has been contended by counsel for the Respondent that even in prison he continued his activities to further the goals of the organization. Because the classified material is highly sensitive, it cannot be made public, save for the fact that in February 1985 – from deciphering a note which a prisoner attempted to smuggle out during a family visit – a report concerning the activity of the security prisoners in the prison was uncovered. The Applicant apparently signed the report … The Applicant began serving as a leader of the Popular Front in Jenin. He attained this status when he arrived in prison and retains it to this day. Furthermore, since the 80’s, the Applicant has been among of the leaders of the Popular Front organization in the Judea and Samaria Region.

(c)       The Petitioner contended that although he did participate in demonstrations, he never took part in violent activities or instigated others to carry them out. He also denied any illicit activity while in prison.

(d)        The classified material that was presented to the Committee attested, in its opinion, to the senior status of the Petitioner in the above-mentioned organization and to his modes of operation both inside prison and those conducted from prison and directed outside. Counsel for the Respondent noted before the Committee that before the issue of the order, a less severe measure, such as administrative detention, was considered. However, this alternative was rejected. For in view of the intensive activity of the Petitioner while in prison, this alternative was shown to be totally ineffective in his case.

Regarding the nature and quality of the evidence presented, the Committee noted the following:

The reliability of the material was examined by us, as was the method of gathering the material and the weight assigned it. Similarly, we

examined the work methods of the Intelligence Service until the information was consolidated. On the basis of our examination and on the basis of clarifications which we received from representatives of the General Security Service, we have no hesitation in determining that this information is reliable, substantiated and well-supported by evidence that conforms to the requirements for the production of evidence in administrative proceedings such as these, as it is clear, unequivocal and convincing.

After the Committee addressed itself in detail to the contentions of counsel for the Petitioner regarding the exercise of authority under Regulations 108 and 112 of the Regulations and the way in which the Committee operated, the Committee summed up its opinion in these terms:

We have before us an Applicant [i.e. the Petitioner – M.S.] whose is involved in activity of such nature that, along with his role, seniority and status in the Popular Front organization, transform him into a person whose presence and continued activity pose a tangible danger to the security of the Region. The Applicant has not learned any lessons from the past. Placing him on trial three times has been to no avail. For even while in prison he continued his work to further the purposes of the organization. The material presented to us indicates the Applicant’s intention to continue his activities in order to secure his standing and advancement in terms of his level of seniority.

We have been persuaded that the Applicant is intimately involved in Popular Front circles. He is a part of the organization and has influence within it. Similarly, we are convinced that we are not dealing with a onetime activity that was perpetrated by the Applicant, but with protracted activity that has taken place over a number of years. As mentioned, the Applicant was termed a leader of the Popular Front in the prison, and, since the beginning of 1980, he is a member of the leadership of the Popular Front in the Judea and Samaria Region.

After seriously considering the arguments of the parties, we have been persuaded that the considerations of the Regional Commander and the grounds for the issuance of the order were pertinent and within the purview of his authority as defined in Regulation 108 of the Defence (Emergency) Regulations, 1945 and were intended to ensure public welfare, the security of the Region and the maintenance of public order within it.

Therefore, we have reached the conclusion that a material security justification exists for adopting this measure of deportation against the Applicant.

The Committee also recommended that the Regional Commander again review the statements of the Petitioner and his counsel before the Committee. In those statements the Petitioner consented to submit to a protracted sentence or to forced transfer to another place of residence and promised not engage in any illicit activity, provided the deportation would not be carried out.

(e)      When the Respondent decided on 1 November 1987, in consultation with advisers on legal and security matters, to continue the deportation procedures, the Petitioner, on 6 November 1987, turned to this court.

(f)      The Petitioner raised in his petition a number of general legal points, which I have addressed above. He additionally contested the weight of the evidence produced against him and especially its true significance. In his opinion, he had engaged purely in legitimate and open activity, and one should not ascribe to him actions whose seriousness would justify so grave a measure as was decided upon on this occasion.

(g)      The State’s response, as presented to us and as put forward in a statement by the State Attorney’s Office, can essentially be summed up by the following arguments:

The terrorist organizations, including the Popular Front of which the Applicant is a member, are striving to build up an infrastructure in the Judea and Samaria Region that is intended to undermine security and the control that I.D.F. forces exercise in the Region, and their ultimate goal is to take control of the entire Region and even beyond.

The Respondent, as Commander of I.D.F. Forces in the Region, is dutybound to act to the best of his ability to frustrate this process and ensure security and public order, and this indeed is one of the central purposes of Regulations 108 and 112(1).

The Commander of I.D.F. Forces in the Judea and Samaria Region is convinced that the deportation of the Petitioner from the Region will enable the Commander of I.D.F. Forces in the Region to fulfil the obligation upon him by virtue of his position and will result in the cessation of the Petitioner’s hostile activity in the Region.

The opinion of the Respondent is that less severe measures, such as issuing an administrative detention order or placing the Petitioner on trial, are not appropriate for the Petitioner under the circumstances.

For even during the course of his last prison sentence that extended, as stated, for over five years, the Petitioner transformed his very stay in the prison into a broad vista for hostile activity.

Administrative detention, by its very nature, is intended either to frustrate a concrete evil that could be created by a certain person’s activity or to prevent a relatively short term phenomenon. By contrast, the harm in which the Petitioner is involved is continuous, since he occupies a senior position in the terrorist organization.

In view of his continuous hostile activity, the Petitioner constitutes a protracted danger, which can be feasibly frustrated solely by means of deportation.

(h)      With the consent of learned counsel for the Petitioner, this court was apprised in the absence of the Petitioner and his counsel, of those items of evidence that were classified, pursuant to a certificate issued by the Minister of Defence, in accordance with Section 44 of the Evidence Law (New Version), 5731-1971. As mandated under section 44 and on the basis of the above-mentioned consent of the Petitioner, we heard explanations from learned counsel for the State and from representatives of the Security Service. We examined the possibility of disclosing additional elements of the classified material to the Petitioner and we announced our negative conclusion in our decision of 15 February 1988.

(i)      As a direct outcome of studying both the unclassified and the classified material, the Court has formulated its opinion that it cannot find any justification for intervening in the factual and pertinent conclusions that the Respondent drew and that the Advisory Committee drew subsequently with regard to the character, scope and purposes of the activities of the Petitioner and the degree of danger that they posed for security. We were persuaded that the Respondent had clear, unequivocal and persuasive evidence, and even the classified evidence, as stated, was brought to our attention. The consistent activity of the Petitioner for and on behalf of the terrorist organization emerges from this evidence.

The court’s clear conclusion is that the Respondent could have arrived at the conclusion which he reached.

13. H.C. 845/87:

(a) Abd al Aziz Abd Alrachman Ude Rafia, born in 1950, is a resident of Gaza.

On 15 November 1987 a deportation order was issued against him, reasoned as follows:

This order is issued since the above serves as a spiritual leader of the Islamic Jihad movement in the Gaza Strip, which supports a violent

Islamic revolution on the Iranian model, armed struggle and the liberation of Palestine through Jihad. In the framework of his sermons in the mosques, he calls for action against the Israeli rule by military struggle.

Immediately upon the issue of this order, the Petitioner was arrested and jailed in Gaza. The Petitioner applied to the Advisory Committee, which functions under Regulation 112(8) of the above-mentioned Regulations, and the hearing before the Committee took place on 19 November 1987.

(b) The Petitioner was represented before the Advisory Committee by five attorneys.

Counsel for the Respondent described the hostile activity of the Petitioner in the past, including his conviction for membership in an illegal organization and incitement, and regarding his activity following his release from prison, counsel stated, inter alia, as follows:

The Appellant was released from prison on 30 July 1985. Despite the sentence that he had served and the suspended sentence pending against him, he persisted in similar activity; that is, since June 1985, numerous complaints have been filed against him, which are detailed in the order. The unclassified facts are as follows: In May 1986, at the Friday prayer marking the opening of Ramadan in al Kasam Mosque, the Appellant delivered a sermon of a nationalist character, in the course of which he accused the authorities of fanning local disputes, of stirring up emotions and of planting spies whom one had to identify and act against. Moreover, he warned that the authorities intended to perpetrate in the Region what they had done in Lebanon. The Appellant delivered his statement in his capacity as Immam of the mosque. In June 1986 the Appellant actively participated, together with other religious people from the Region, in the disturbances that took place on the Temple Mount in Jerusalem. The disturbances occurred on 3 June 1986, during a Moslem religious festival, and this was a real incident in the course of

which a number of investigation files were opened. The Appellant was not investigated at this stage. Information received in July 1986 revealed that the Appellant was found consorting with those responsible for the Islamic Jihad in Gaza. An additional item of information in this vein is from October 1986, according to which three people were appointed to direct the activity of the Islamic Jihad in Judea and Samaria. They were in turn subordinate to the Appellant and his brother Salman. As this is related to the Islamic Jihad organization, I will present material further on.

There are three items of information from November 1986 dealing with the investigation of three members of the Islamic Jihad, who were accused of the sabotage incident against the Givati soldiers in Jerusalem. The three gave evidence separately. One of them visited the Appellant in Gaza before the incident, without indicating a connection between the Appellant and the incident. The other two said the same. An item from February 1987 reports that in a religious instruction that the Appellant transmitted over the mosque loudspeaker, he noted, among other things, that there are parents who view their children who throw stones as hooligans, but in the Appellant’s opinion, a stone is like a bullet and the children are not hooligans. An item from March 1987 deals with a sermon delivered by the Appellant in a mosque on 6 February 1987 in which he spoke of the Jordanian five-year plan. He rejected the plan with the comment that the Palestinians had no need for financing, nor for strengthening the Israeli conquest and rule; rather they had a need for liberty and for expelling the occupation.

In a religious instruction given on 10 February 1987, he expressed support for Iran and came out strongly against Iraq and Israel.

In a sermon on 27 February 1987, the Appellant called upon the believers to continue the struggle, because this was an opportunity to arouse believing residents to struggle.

The Appellant spurned the requests that were directed to him to cease these disturbances. In the investigation of a suspect from Rafiah in January 1987, the person interrogated divulged that he was recruited for the Islamic Revolutionary Movement by Fathi Brij Jacki, who was a prisoner sentenced for membership in the Islamic Jihad. That same suspect divulged that Fathi stipulated to him that should he be arrested, the Appellant would replace him, and the suspect would have to coordinate with the Appellant the attendance of youths at the Friday sermons. On 5 June 1987 in the Bet Lahiya mosque, the Appellant delivered an address to mark 20 years since the Six Day War. He incited to Jihad, called for the liberation of Jerusalem and urged his followers to continue the struggle and not surrender even if they be injured.

On 9 October 1987, in the course of the Friday afternoon prayer in his Gaza mosque, he devoted the sermon to the four terrorists who were killed in clashes with the security forces and, inter alia, stated the following:

The worshippers should take the four slain terrorists as an example and engage in struggle as they did. The individual must overcome his private interests and act against the authorities for the sake of the general Islamic interests. The worshippers ought to adopt the path of armed struggle even if it might cost them their lives.

In the course of the sermon, proclamations were disseminated among the worshippers that included the portraits of the slain terrorists and a message similar to the one just mentioned. I would like to present two proclamations that were disseminated on that occasion, together with a translation. There is a problem at this stage in presenting the translation. I wish to waive the presentation of the translation at this stage. The proclamations will be designated as Exhibit 2 and Exhibit 3. The investigation report of October 1987 states that on 1 October 1987 in the afternoon sermon in his Gaza mosque, the Appellant remarked that Islam is the religion that calls for Jihad. Those present must go forth and struggle as God wills. Those present must unite in order to expel the foreign conqueror. At the end of October 1987, the Appellant took part in a memorial ceremony for two attorneys who were murdered in Gaza a few months ago. The two were identified as supporters of the Islamic Jihad. In the ceremony the Appellant delivered a speech, in which he stated, inter alia, that blood must be requited by blood. The report of November 1987 on the interrogation of M.F. of Jelazun, in the

Ramallah area reveals that he indicated that he and the members of his cell were members of the Islamic Jihad and that they had visited the Appellant in Gaza, who knew of his activities in the Islamic Jihad. In a sermon at his mosque on 6 November 1987, the Appellant called upon God to pour down fire on the enemies, for He always sides against the tyrants.

From some of the items of information that I have detailed and will detail later, it cannot be said that the preachings of the Appellant were addressed solely to the Israeli authorities. But preachings which call for violent activity and civil disorder in the context of religious extremism, including actions against persons suspected of heresy to Islam, as well as against stores which carry abominable movies or against weddings where western music is played – these activities also severely harm the security of the Region, because there was resort to fire arms and casualties were caused .

At this stage I would like to present two documents. The first is the expert opinion of a General Security Service officer regarding the Islamic Jihad. It is identical to what has been presented in the past in the trials of members of the Islamic Jihad and is in the possession of the defence attorneys – marked as Exhibit 4.

In addition, I would like to present a personal profile and impression of the Appellant that was prepared by the Advisor on Arab Affairs of the Region’s civil administration, on the basis of the material in his possession, as well as a meeting he held with the Appellant. As stated, this document is a precis of the Appellant’s personality and activities.

In addition, counsel for the Respondent also brought before the Committee classified material containing detailed information on the Petitioner’s activity that endangered security. This information was presented subsequently to this court, with the consent of counsel for the Petitioner (in the absence of the Petitioner or his counsel), and with respect to which we rendered our decision of 15 February 1988.

The Committee noted in its reasoned and detailed decision, inter alia, as follows:

The Applicant is mentioned as responsible for the Islamic Jihad in the Gaza Strip and perhaps beyond that area. He is depicted as a guide of that organization and as an influential figure among the residents of the area in general, and among those who belong to that organization in particular. They look to him constantly and often wait by his doorway to hear his word. He acquired this status through his activities as a lecturer at the university and as a preacher in the mosque, where he delivered extremist religious and nationalist addresses laden with incitement and hatred against Israeli rule. These more than once called for violent struggle, including encouragement of civil disorder and even extreme acts of violence, such as murder. There is no doubt, therefore, that the Applicant constitutes an actual danger to the security of the Region and its inhabitants and to the maintenance of public order; further, that the deportation order was given, within the framework of considerations enumerated in Regulation 108 of the Regulations… The question remains whether in the Applicant’s case, the most severe measure, namely deportation, is called for.

In view of the Applicant’s “history” and personality, we are convinced that the answer to this question is affirmative. The Applicant was subject in the past to various restrictions because of his activity, was even tried and has served a prison sentence. However, despite all this, he did not mend his ways and continued precisely along the path upon which he had embarked previously. In the course of time, he even extended his influence and acquired a greater following of believers.

The Applicant has impressed us as a man of strong character, who totally believes in the righteousness of his ways and, therefore, there is no chance that in the foreseeable future he will desist from his dangerous activity. We do not believe that any restrictions imposed upon him will suffice to prevent the continuation of his negative influence on the residents of the Region.

Even his incarceration (e.g. by way of administrative detention), will not counter his influence. There is ground to fear that precisely in such a place will he be even more accessible to the extremists among his followers, and that his stay in prison will have a most dangerous and negative influence on what takes place both within the prison and outside it.

The most efficient and suitable measure in this case is, therefore, to deport the Applicant outside the Region and the country.

Even if he be free to go about in a foreign land, with no one to constrain him, his harmful influence on the Region would be immeasurably smaller and less perceptible and immediate than would be the case, were he to walk about in our midst.

(c) When the Committee rejected the application of the Petitioner and recommended on 25 November 1987 that the deportation order be upheld, the Petitioner turned to this court.

His biography was described in his petition in these terms:

3.a. The Petitioner bears I.D. card no. 92118635, was born in 1950, and is a permanent resident of Gaza. He is married and the father of 5 minor children.

1. In 1970 the Petitioner traveled to Cairo with the consent of the Israeli military authorities to pursue academic studies. In 1975 he completed his studies for a master’s degree on the subject of the Islamic Sharia.
2. Between the years 1976-1981, the Petitioner served as a teacher in the Emirate of Shajah in the Persian Gulf.
3. During the course of his study and work outside the Region, the Petitioner would intermittently visit his family in the Gaza Strip.
4. In 1981 the Petitioner returned permanently to Gaza, his place of domicile. He was hired as a lecturer on Islamic Sharia at the Islamic University of Gaza and served in the post of Immam at one of the mosques of Gaza. In the framework of this position, he delivered sermons during the Friday prayers at the mosque.
5. In September 1983, a six month supervision order was issued against the Petitioner. It was extended for another six months (up to September 1984). Under these orders the Petitioner was prohibited. inter alia, from entering the Islamic University where he worked.
6. The Petitioner appealed against the orders. His first appeal, however, was struck out due to his non-appearance. The second appeal was heard in June 1984 and dismissed.
7. In October 1984 the Petitioner was put on trial before the Military Court in Gaza, on charges of membership in an illegal organization (Regulation 85 (1) (a) of the Defence (Emergency) Regulations) and of incitement (Section 7 of the Order Prohibiting Acts of Incitement and Hostile Propaganda).
8. The Petitioner was convicted on the second offence – incitement and membership activity, and was sentenced to 11 months of actual imprisonment, from the date of arrest, and to an additional suspended sentence. He was released from prison in July 1985.

j. Following his release he returned to work at the Islamic University and to his post as Immam.

(d) As stated, all the evidentiary material, including the classified material, was presented to us.

Respondent no. 1, O/C Southern Command, noted in the affidavit that he submitted to

us:

The decision to deport the Petitioner from the Region was taken after all parties responsible for the security of the Region, its welfare and proper administration, including military and security personnel at the highest military, security and political echelons, consulted and seriously examined the need for deportation. All were convinced that the status, position and activity of the Petitioner in the Islamic Jihad movement dictate today the adoption of this grave and extreme measure of deportation.

The copious evidentiary material accumulated by the security authorities was presented to the above-named parties and to me, and it sufficed to persuade me unequivocally that the Petitioner serves as the spiritual leader of the Islamic Jihad movement in the Gaza Strip, a movement which supports a violent revolution on the Iranian model and an armed struggle and the liberation of Palestine through Jihad. In the framework of his sermons in the mosques, the Petitioner calls for action against the Israeli rule by means of military struggle.

The facts as presented to us clearly and persuasively attest to the consistent and hostile activity of the Petitioner, and they directly refute the contentions and denials of the Petitioner. The sole possible conclusion is that this material was, as the court requires, clear, unambiguous and convincing.

We find no basis for the contentions as to lack of good faith or arbitrariness, and can discern from the proceedings up to now that, with respect to the question here deliberated, the authorities acted cautiously, upon thorough examination and with discretion.

I therefore see no grounds for intervention by this court in the decision of Respondent no. 1.

14. (a) H.C. 27/88:

(a) The Petitioner, J’mal Shaati Hindi , is a resident of Jenin and is studying at Al Najah University. On 1 December 87 a deportation order was issued against him reasoned as follows:

J’mal Shaati Yunis Hindi is a senior operative in the Al Fatah organization and the focus of his hostile activity is in the city of Nablus in general and at Al Najah University in particular. He was sentenced to four years of actual imprisonment for his terrorist activity and was subject to a restriction order for a year and a half and to a nine month period of administrative detention. During that entire time he continued intensively to act in furtherance of the organization, both inside and outside prison.

He applied to the Advisory Committee and this body heard the submissions of counsel for the Petitioner and of course for the Respondent, who produced the evidence that assisted the Regional Commander in making his decision. A portion of the evidence was submitted by the security authorities in the absence of the Petitioner or his counsel.

The disclosed facts against the Petitioner, as subsequently summarized in the decision of the Advisory Committee, were as follows:

The hostile activities of the applicant began in 1976. In that year, the applicant was among a group of youths who incited students in Jenin to demonstrate, and the windows of the school were shattered. The applicant was among those who organized demonstrations in the Jenin refugee camp.

In July 1976 doctrinal material regarding the Al Fatah organization was found in the applicant’s home.

In August 1976 the applicant was arrested and interrogated. He admitted that about a year earlier he had been recruited to the Al Fatah organization. He received a code name and recruited additional activists. Together with members … (not clear) he trained in laying sabotage charges and even prepared an explosive charge himself. The applicant also knew of the location of a box of bullets, kept by one of his companions. During that same period he participated actively in organizing demonstrations, erecting road blocks, throwing rocks and setting fire to tires.

On the basis of the investigation material and the admission of the accused, he was tried, convicted and sentenced to four years of actual imprisonment.

In July 1980 the applicant completed his sentence and was released from prison. A few of months after his release, in April 1981, the applicant took an active part in organizing “Palestine Week” at Najah University, sponsored by Al Fatah.

In a demonstration that took place in November 1981, at Najah University, the applicant was one of the leading activists. In the course of the demonstration, stone road blocks were erected and rocks were hurled at a military force that arrived on the scene. A similar demonstration in which the applicant was active took place that same month.

During the months of March and June 1982, the applicant was again involved in disturbances in which he played an active role. In this period the applicant was arrested twice. From the interrogation of an Al Fatah activist in October 1982, it emerged that the applicant headed the volunteer youth committee of the Fatah in the Jenin refugee camp. In January 1983 a celebration marking the anniversary of the establishment of the Fatah was held at Najah University. Four thousand people participated in that celebration. The applicant was among those active in organizing the celebration. In January 1983 the applicant again took part in throwing stones at I.D.F. forces.

On 19 April 1983 a special supervision order was issued against the applicant for a period of six months. In May 1983 he was again involved in disturbances. The original supervision order was extended for another six months, commencing 19 October 1983; and on 19 April 1984 it was extended for yet another six months.

In August 1984 the applicant was a member of Lijnat A ‘Shabiba in the Jenin refugee camp. In August 1985 an administrative detention order was issued against the applicant for six months, but following his appeal, the period of administrative detention was shortened to three months. With his release from administrative detention, a celebration was held in his honour in May 1986, in the course of which songs were sung in support of Al Fatah. In July 1986 the applicant was among the senior operatives of theA’Shabiba movement at Najah University.

On 8 January 1987, the applicant spoke to an Al Fatah Day event at Bir Zeit University, and extended greetings to mark the day. On 12 June 1987 the applicant was placed under administrative detention for a period of six months.

In July 1987, a day before the student council elections, the applicant presented the Shabiba candidates to the students of Najah University and called for continued nationalism and struggle, including armed struggle. Toward the end of November 1987, the applicant was again arrested for his involvement in disturbances at the Jenin refugee camp.

According to the material, the applicant’s name came up in the interrogation of a member of a youth committee in Jenin, as one of those responsible for Shabiba activities in the Jenin refugee camp.

The above was a precis of the unclassified material presented by counsel for the Respondent. In addition to this material, a large collection of classified material was brought before the Advisory Committee.

The Petitioner denied all involvement in a terrorist organization and attributed the issueance of the order to a desire to hamper him in expressing his political views. The Advisory Committee had this to say in its decision of 27 December 1987:

The statement of the applicant is totally belied by what we have found in the copious material, both classified and unclassified, that was presented to us. As opposed to the sweeping and blanket denial of the applicant, we found in the body of the material details concerning his activity and standing in the AI Fatah organization. In closed hearings, clarifications were received regarding the method in which the material was gathered and the reliability of the sources. We were persuaded that the sources of the information are numerous and that most of the the important items of information were received from diverse sources and corroborated. We were persuaded that the evidence presented to us meets the requirements set in the case law, being clear, unequivocal and persuasive (H.C. 513,514/85, Nazzal and Others v. Commander of I.D.F. Forces in the Judea and Samaria Region, 39 (3) P.D. 645). In examining the material, we took into consideration the fact that it is difficult for the applicant to defend himself against material that is not brought to his attention and, therefore, we exercised special caution.

The import of our above determination is that the applicant’s course of conduct is totally at odds with the description he presented to us and upon which his counsel relied. We are dealing with a person holding a senior position in the AI Fatah organization and with connections in the

organization. His modus operandi is sophisticated. He refrains from appointments to official positions to avoid exposure, but is fully involved in what is going on. His main activity is to take an active part in organizing demonstrations and violent disturbances, in some of which rocks were thrown at military forces and road blocks were set up. The applicant is a person of standing, power, influence and ability to instigate and bring about relatively large scale disturbances in those centres where he is active and known.

As emerges from the material, the applicant’s activity continued over a period of years. He was imprisoned for four years for terrorist activity; he was subject to special supervision orders and was placed under administrative detention, but he did not cease his hostile activities. He continued them intensively and on one occasion when he participated in a disturbance he suffered injury from a bullet fired at his leg.

The applicant’s activity has continued up until recently and from a perusal of the material one can gauge not only his sense of determination to act and to engage others in violent ways in order to further the goals of the organization in whose framework he functions, but one can also discern in him a person who has decided to make such activity his life’s goal. We have been persuaded that he is likely to pose a tangible and lasting danger, due not solely to his growing stature, but also to the range and type of his activity, which reflects a method for realizing the armed struggle that the applicant propounds.

In light of the aforesaid, there is no basis for the contentions of the applicant and his counsel that the order was issued purely for a political view expressed. The applicant’s activity and its inherent danger to the security of the Region, was the basis for the issue of this order. There is no need to dwell on the danger that could result from this type of activity in which the applicant is engaged. Violent demonstrations and