N.B. As per the disclaimer, neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.
[Source: Ajuri v. IDF Commander, The Supreme Court sitting as the High Court of Justice, 3 September 2002, HCJ 7019/02; HCJ 7015/02, available on http://elyon1.court.gov.il/verdictssearch/englishverdictssearch.aspx ]
1. Kipah Mahmad Ahmed Ajuri
2. Abed Alnasser Mustafa Ahmed Asida [et al.]
1. IDF Commander in West Bank
2. IDF Commander in Gaza Strip [et al.]
1. Amtassar Muhammed Ahmed Ajuri [et al.]
1. IDF Commander in Judaea and Samaria
2. IDF Commander in Gaza Strip [et al.]
The Supreme Court sitting as the High Court of Justice
[3 September 2002]
Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza,
M. Cheshin, T. Strasberg-Cohen, D. Dorner, Y. T Prkel, D. Beinisch
Petition to the Supreme Court sitting as the High Court of Justice
Facts: The IDF Commander in Judaea and Samaria made orders requiring three residents of Judaea and Samaria to live, for the next two years, in the Gaza Strip. The orders were approved by the Appeals Board. The three residents of Judaea and Samaria petitioned the High Court of Justice against the orders.
The petitioners argued that the orders were contrary to international law. In particular the petitioners argued that Judaea and Samaria should be regarded as a different belligerent occupation from the one in the Gaza Strip, and therefore the orders amounted to a deportation from one territory to another, which is forbidden under international law (art. 49 of the Fourth Geneva Convention).
The respondents, in reply, argued that the orders complied with international law. The respondents argued that the belligerent occupation of Judaea, Samaria and the Gaza Strip should be considered as one territory, and therefore the orders amounted merely to assigned residence, which is permitted under international law (art. 78 of the Fourth Geneva Convention).
A further question that arose was whether the IDF commander could consider the factor of deterring others when making an order of assigned residence against any person.
Held: Article 78 of the Fourth Geneva Convention empowers an occupying power to assign the place of residence of an individual for imperative reasons of security. Assigned residence is a harsh measure only to be used in extreme cases. However, the current security situation in which hundreds of civilians have been killed by suicide bombers justifies the use of the measure in appropriate cases.
Judaea and Samaria and the Gaza Strip are effectively one territory subject to one belligerent occupation by one occupying power, and they are regarded as one entity by all concerned, as can be seen, inter alia, from the Israeli-Palestinian interim agreements. Consequently, ordering a resident of Judaea and Samaria to live in the Gaza Strip amounts to assigned residence permitted under art. 78 of the Fourth Geneva Convention, and not to a deportation forbidden under art. 49 of the Fourth Geneva Convention.
An order of assigned residence can be made against a person only if there is a reasonable possibility that the person himself presents a real danger to the security of the area. If he does not, considerations of deterring others are insufficient for making an order of assigned residence. But if such a danger does exist, the IDF commander is authorized to make an order of assigned residence, and he may consider the deterrent factor in deciding whether actually to make the order or not.
The Appeals Board found that the petitioner in HCJ 7019/02 had sewn explosive belts. The Appeals Board found that the first petitioner in HCJ 7015/02 had acted as a lookout for a terrorist group when they moved explosive charges. In both these cases, the Supreme Court held that the deeds of the petitioners justified assigned residence, and it upheld the orders. However, with regard to the second petitioner in HCJ 7015/02, the Appeals Board found only that he had given his brother, a wanted terrorist, food and clothes, and had driven him in his car and lent him his car, without knowing for what purpose his brother needed to be driven or to borrow his car. The Supreme Court held that the activities of the second petitioner were insufficient to justify the measure of assigned residence, and it set aside the order of assigned residence against him.
HCJ 7019/02 – petition denied.
HCJ 7015/02 – petition of the first petitioner denied; petition of the second
President A. Barak
The military commander of the Israel Defence Forces in Judaea and Samaria made an ‘order assigning place of residence’. According to the provisions of the order, the petitioners, who are residents of Judaea and Samaria, were required to live for the next two years in the Gaza Strip. Was the military commander authorized to make the order assigning place of residence? Did the commander exercise his discretion lawfully? These are the main questions that arise in the petitions before us.
‘Special supervision and assigning a place of residence’
In the introduction to the Amending Order it is stated that is was made ‘in view of the extraordinary security conditions currently prevailing in Judaea and Samaria [...]’. It was also stated in the introduction that the order was made ‘after I obtained the consent of the IDF military commander in the Gaza Strip’. Indeed, in conjunction with the Amending Order, the IDF commander in the Gaza Strip issued the Security Provisions (Gaza Strip) (Amendment no. 87) Order (no. 1155), 5762-2002. Section 86(g) of this order provided that:
‘Someone with regard to whom an order has been made by the military commander in Judaea and Samaria under section 86(b)(1) of the Security Provisions (Judaea and Samaria) Order (no. 378), 5730-1970, within the framework of which it was provided that he will be required to live in a specific place in the Gaza Strip, shall not be entitled to leave that place as long as the order is in force, unless the military commander in Judaea and Samaria or the military commander in the Gaza Strip so allow.’
Under the Amending Order, orders were made assigning the place of residence of the three petitioners before us. Let us now turn to these orders and the circumstances in which they were made.
‘From a legal viewpoint the source for the authority and the power of the military commander in a territory subject to belligerent occupation is in the rules of public international law relating to belligerent occupation (occupatio bellica), and which constitute a part of the laws of war’ (HCJ 393/82 Almashulia v. IDF Commander in Judaea and Samaria, at p. 793).
In this respect, I would like to make the following two remarks: first, all the parties before us assumed that in the circumstances currently prevailing in the territory under the control of the IDF, the laws of international law concerning belligerent occupation apply [...]; second, the rules of international law that apply in the
territory are the customary laws (such as the appendix to the (Fourth) Hague Convention respecting the Laws and Customs of War on Land of 1907, which is commonly regarded as customary law; hereafter – the Fourth Hague Convention). With regard to the Fourth Geneva Convention, counsel for the Respondent reargued before us the position of the State of Israel that this convention – which in his opinion does not reflect customary law – does not apply to Judaea and Samaria. Notwithstanding, Mr Nitzan told us – in accordance with the long-established practice of the Government of Israel (see M. Shamgar, ‘The Observance of International Law in the Administered Territories’, 1 Isr. Y. H. R. 1971, 262) – that the Government of Israel decided to act in accordance with the humanitarian parts of the Fourth Geneva Convention. In view of this declaration, we do not need to examine the legal arguments concerning this matter, which are not simple, and we may leave these to be decided at a later date. It follows that for the purpose of the petitions before us we are assuming that humanitarian international law – as reflected in the Fourth Geneva Convention (including article 78) and certainly the Fourth Hague Convention – applies in our case. We should add that alongside the rules of international law that apply in our case, the fundamental principles of Israeli administrative law, such as the rules of natural justice, also apply. Indeed, every Israeli soldier carries in his pack both the rules of international law and also the basic principles of Israeli administrative law that are relevant to the issue. [...]
This provision concerns assigned residence. It constitutes a special provision of law (lex specialis) to which we must refer and on the basis of which we must determine the legal problems before us. Whatever is prohibited thereunder is forbidden even if a general provision may prima facie be interpreted as allowing it, and what is permitted thereunder is allowed even if a general provision may prima facie be interpreted as prohibiting it [...]. Indeed, a study of the Amending Order itself and the individual orders made thereunder shows that the maker of the Order took account of the provisions of article 78 of the Convention, and acted accordingly when he made the Amending Order and the individual orders. The Respondent did not seek, therefore, to make a forcible transfer or to deport any of the residents of the territory. The Respondent acted within the framework of ‘assigned residence’ (according to the provisions of article 78 of the Fourth Geneva Convention). Therefore we did not see any reason to examine the scope of application of article 49 of the Fourth Geneva Convention, which prohibits a forcible transfer or a deportation. In any event, we see no need to consider the criticism that the petitioners raised with regard to the ruling of this court, as reflected in several decisions, the main one being HCJ 785/87 Abed El-Apu v. IDF Commander in West Bank, with regard to the interpretation of article 49 of the Fourth Geneva Convention. We can leave this matter to be decided at a later date.
‘the protected persons concerned can therefore only be interned, or placed in assigned residence, within the frontiers of the occupied country itself’
(J. S. Pictet, Commentary: Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1958, at p. 368).
It was argued before us that the Gaza Strip – to which the military commander of Judaea and Samaria wishes to assign the place of residence of the petitioners – is situated outside the territory.
‘The two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which shall be preserved during the interim agreement.’
This provision is repeated also in clause 31(8) of the agreement, according to which the ‘safe passage’ mechanisms between the area of Judaea and Samaria and the area of the Gaza Strip were determined. Similarly, although this agreement is not decisive on the issue under discussion, it does indicate that the two areas are considered as one territory held by the State of Israel under belligerent occupation. Moreover, counsel for the Respondent pointed out to us that ‘not only does the State of Israel administer the two areas in a coordinated fashion, but the Palestinian side also regards the two areas as one entity, and the leadership of these two areas is a combined one’. Indeed, the purpose underlying the provisions of art. 78 of the Fourth Geneva Convention and which restricts the validity of assigned residence to one territory lies in the societal, linguistic, cultural, social and political unity of the territory, out of a desire to restrict the harm caused by assigning residence to a foreign place. In view of this purpose, the area of Judaea and Samaria and the area of the Gaza Strip should not be regarded as territories foreign to one another, but they should be regarded as one territory. In this territory there are two military commanders who act on behalf of a single occupying power. Consequently, one military commander is competent to assign the place of residence of a protected person outside his area, and the other military commander is competent to agree to receive that protected person into the area under his jurisdiction. The result is, therefore, that the provisions of art. 78 of the Fourth Geneva Convention does apply in our case. Therefore there is no reason to consider the provisions of art. 49 of that Convention.
‘In occupied territories the internment of protected persons should be even more exceptional than it is inside the territory of the Parties to the conflict; for in the former case the question of nationality does not arise. That is why Article 78 speaks of imperative reasons of security; there can be no question of taking collective measures: each case must be decided separately their exceptional character must be preserved’ (ibid., at pp. 367, 368).
He adds that it is permitted to adopt a measure of assigned residence only towards persons whom the occupying power ‘considers dangerous to its security’ (ibid., at p. 368). This approach – which derives from the provisions of the Convention – was adopted by this court in the past. We have held repeatedly that the measures of administrative internment – which is the measure considered by art. 78 of the Fourth Geneva Convention together with assigned residence – may be adopted only in the case of a ‘danger presented by the acts of the petitioner to the security of the area’ [...]. In one case Justice Bach said:
‘The respondent may not use this sanction of making deportation orders merely for the purpose of deterring others. Such an order is legitimate only if the person making the order is convinced that the person designated for deportation constitutes a danger to the security of the area, and that this measure seems to him essential for the purpose of neutralizing this danger’ (HCJ 814/88 Nasralla v. IDF Commander in West Bank, at p. 271).
This conclusion is implied also by the construction of the Amending Order itself, from which it can be seen that one may only adopt a measure of assigned residence on account of a danger presented by the person himself. But beyond all this, this conclusion is required by our Jewish and democratic values. From our Jewish heritage we have learned that ‘Fathers shall not be put to death because of their sons, and sons shall not be put to death because of their fathers; a person shall be put to death for his own wrongdoing’ (Deuteronomy 24, 16). ‘Each person shall be liable for his own crime and each person shall be put to death for his own wrongdoing’ [...]; ‘each person shall be arrested for his own wrongdoing – and not for the wrongdoing of others’ [...]. It should be noted that the purpose of assigned residence is not penal. Its purpose is prevention. It is not designed to punish the person whose place of residence is assigned. It is designed to prevent him from continuing to constitute a security danger. This was discussed by President Shamgar, who said:
‘The authority is preventative, i.e., it is prospective and may not be exercised unless it is necessary to prevent an anticipated danger... The authority may not be exercised unless the evidence brought before the military commander indicates a danger that is anticipated from the petitioner in the future, unless the measures designed to restrict his activity and prevent a substantial part of the harm anticipated from him are adopted’ [...].
‘The internment is designed to prevent and frustrate a security danger that arises from the acts that the internee may perpetrate and which may not reasonably be prevented by adopting regular legal measures (a criminal proceeding) or by an administrative measure that is less severe from the viewpoint of its consequences (for the purpose of reaching conclusions from past acts with regard to future danger)’ [...].
These remarks are also relevant to the issue of assigned residence. Therefore each case must be examined to see whether filing a criminal indictment will not prevent the danger that the assigned residence is designed to prevent. Moreover, the measure of assigned residence – as discussed in art. 78 of the Fourth Geneva Convention – is generally a less serious measure than the measure of internment. This matter must be considered in each case on its merits, in the spirit of Pictet’s remarks that:
‘Internment is the more severe as it generally implies an obligation to live in a camp with other internees. It must not be forgotten, however, that the terms “assigned residence” and “internment” may be differently interpreted in the law of different countries. As a general rule, assigned residence is a less serious measure than internment’ (ibid., at p. 256).
‘It did not seem possible to define the expression “security of the State” in a more concrete fashion. It is thus left very largely to Governments to decide the measure of activity prejudicial to the internal or external security of the State which justifies internment or assigned residence’ (ibid., at p. 257).
Note that the considerations that the military commander may take into account are not merely ‘military’ reasons (see, for example, arts. 5, 16, 18, 53, 55, 83 and 143 of the Fourth Geneva Convention). Article 78 of the Fourth Geneva Convention extends the kind of reasons to ‘reasons of security’ (see, for example, arts. 9, 42, 62, 63, 64 and 74 of the Fourth Geneva Convention). Indeed, the Fourth Geneva Convention clearly distinguishes between ‘imperative reasons of security’ and ‘imperative military reasons’. The concept of reasons of security is broader than the concept of military reasons.
Admittedly, ‘security of the State’ is not a ‘magic word’ that prevents judicial review [...]. [W]e will not be deterred from exercising review of the decisions of the military commander under art. 78 of the Fourth Geneva Convention and the Amending Order merely because of the important security aspects on which the commander’s decision is based. Notwithstanding, we will not replace the discretion of the military commander with our discretion. We will consider the legality of the military commander’s discretion and whether his decisions fall into the ‘zone of reasonableness’ determined by the relevant legal norms that apply to the case. [...]
‘In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the judges stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’
The result is that we are denying the petition in HCJ 7019/02, and the petition in HCJ 7015/02, in so far as it concerns the first petitioner. We are making the show-cause order absolute with regard to the second petitioner in HCJ 7015/02. [...]