Ajuri and Others v Israel Defence Force Commander

• Date: 03 September 2002
• Court: Supreme Court (Israel)

Israel, Supreme Court sitting as the High Court of Justice

(Barak, President; Levin, Vice-President; Or, Mazza, Cheshin, Strasberg-Cohen, Dorner, Trkel and Beinisch JJ)

Ajuri and Others

and

Israel Defence Force Commander in the West Bank, Israel Defence Force Commander in the Gaza Strip and Others

War and armed conflict Belligerent occupation Occupied territory Definition West Bank and Gaza Strip Whether occupied territory Transfer of parts of West Bank and Gaza Strip to Palestinian Authority Attacks on Israel Israeli forces re-entering areas Whether West Bank and Gaza Strip to be treated as a single entity or as two separate occupied territories Inhabitants of West Bank required to reside in Gaza Strip for two years Whether deportation outside occupied territory or assigned residence within occupied territory Criteria for assigned residence Requirement that person concerned must pose threat to the security of the territory Fourth Geneva Convention, 1949, Articles 49 and 78 The law of Israel

Summary: The facts:Following a series of suicide bomb and other attacks upon Israelis in Israel and the West Bank (Judea and Samaria), Israel Defence Force (IDF) units entered areas of the West Bank and the Gaza Strip which had been under belligerent occupation but had been transferred to the control of the Palestinian Authority. The Israel Ministerial Committee for National Security authorized the Commander of the Israel Defence Force in the West Bank (the IDF Commander), inter alia, to issue orders requiring family members of suicide bombers or the perpetrators of serious attacks and those sending them to reside in assigned places of residence in the Gaza Strip, provided that the family members in question were themselves involved in terrorist activity. The IDF Commander had earlier promulgated an order (the Original Order) permitting instructions to be given that a person should be placed under special supervision (a term which included assigned

residence) if the Commander was of the opinion that such supervision was imperative for decisive security reasons. Decisions of the Commander were subject to review by an Appeals Board chaired by a judge. The Original Order was limited to the West Bank. In order to give effect to the decision of the Ministerial Committee, the IDF Commander amended the Original Order on 1 August 2002. Section 86 of the Amending Order2 provided that the place of assigned residence might be within either the West Bank or the Gaza Strip

The IDF Commander issued orders requiring the three petitioners, all of whom were resident in the West Bank, to live for a period of two years in the Gaza Strip. The petitioners challenged the validity of the Amending Order on the ground that the Gaza Strip and West Bank were separate territories, each of which was subject to belligerent occupation, so that the forcible transfer of a person from one to the other amounted to the deportation of a protected person from occupied territory and thus contravened international law, in particular Article 49(1) of the Fourth Geneva Convention, 1949.3 They also questioned the right of the IDF Commander to take into account the deterrent effect on others of an order requiring a West Bank resident to live in the Gaza Strip. The IDF Commander maintained that the West Bank and the Gaza Strip should be considered as one territory, subject to a single regime of occupation, so that Article 49 was inapplicable and the orders were, therefore, for assigned residence which was permitted under Article 78 of the Fourth Geneva Convention.4

Held:The orders were upheld in two cases and set aside in the third.

(1) The parties had assumed that international law on belligerent occupation was applicable. The respondent had denied that the Fourth Geneva Convention was formally applicable but had accepted that it was the policy of Israel to apply its provisions. It was therefore unnecessary for the Court to determine the question of formal applicability (para. 13).

(2) Assigned residence was a serious interference with the human rights of the individual but the rights in question were not absolute. The scope of the power to restrict those rights was set by international law on belligerent occupation and, in particular, by Article 78 of the Fourth Geneva Convention, which constituted a lex specialis in this regard. Conduct which contravened the norms laid down in that Article could not be justified by reference to broader general provisions or principles (paras. 1418).

(3) The West Bank and the Gaza Strip were properly regarded as a single territory, subject to a single regime of occupation by a single occupying power. Although, prior to 1967, the Gaza Strip had been in Egyptian hands while the West Bank had been controlled by Jordan, both were part of the territory

of the Palestine Mandate and they had been treated as a single entity in, for example, the Israeli-Palestinian Interim Agreement. Accordingly, Article 49 of the Fourth Geneva Convention had no bearing on the matters before the Court, since the petitioners had not been deported or transferred out of the occupied territory. Their cases were governed by the law on assigned residence in Article 78 (paras. 1922)

(4) Article 78 required that the person subjected to assigned residence must himself constitute a danger and the use of assigned residence must aid in averting that danger. The place of residence of an innocent person who did not himself pose a danger could not lawfully be assigned even if the use of the assigned residence power in such a case might have a deterrent effect upon others. The respondent was, however, entitled to take account of the deterrent effect of making an order for assigned residence provided that the person in respect of whom the order was made actually posed a danger. Moreover, mere suspicion was not enough. Normally, the power was to be used only where there existed administrative evidence which, even if not admissible in a court of law, showed clearly and convincingly that, if the measure of assigned residence were not adopted, there was a reasonable possibility that the person concerned would present a real danger of harm to the security of the territory (paras. 2330).

(5) In the present case, the Appeals Board had found that two of the petitioners had been directly involved in terrorist activity. The orders for assigned residence were therefore justified in their cases. The third petitioner, however, had not been directly involved in terrorism. The Appeals Board had found only that he had given his brother, a wanted terrorist, food and clothing and had driven him in his car and lent him his car, without knowing for what purpose his brother needed transport. These activities were insufficient to justify the order for assigned residence (paras. 319).

(6) Article 78 had to be given an interpretation which accorded with the realities of the current situation and the terrorist threat which Israel was facing. The law was not, however, silent in time of war and could not be disregarded because the threat faced was great (paras. 401).

The following is the text of the judgment of the Court, delivered by President Barak, with whom the other members of the Court agreed:

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.

Background

1. Since the end of September 2000, fierce fighting has been taking place in Judaea, Samaria and the Gaza Strip. This is not police activity. It is an armed struggle. Within this framework, approximately 14,000 attacks have been made against the life, person and property of innocent Israeli citizens and residents, the elderly, children, men and women. More than six hundred citizens and residents of the State of Israel have been killed. More than 4,500 have been wounded, some most seriously. The Palestinians have also experienced death and injury. Many of them have been killed and wounded since September 2000. Moreover, in one month aloneMarch 2002120 Israelis were killed in attacks and hundreds were wounded. Since March 2002, as of the time of writing this judgment, 318 Israelis have been killed and more than 1,500 have been wounded. Bereavement and pain overwhelm us.

2. Israel's fight is complex. The Palestinians use, inter alia, guided human bombs. These suicide bombers reach every place where Israelis are to be found (within the boundaries of the State of Israel and in the Jewish villages in Judaea and Samaria and the Gaza Strip). They sow destruction and spill blood in the cities and towns. Indeed, the forces fighting against Israel are terrorists; they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including in holy sites; they are supported by part of the civilian population, and by their families and relatives. The State of Israel faces a new and difficult reality, as it fights for its security and the security of its citizens. This reality has found its way to this court on several occasions (see HCJ 2936/02 Doctors for Human Rights v. IDF Commander in West Bank;1 HCJ 2117/02 Doctors for Human Rights v. IDF Commander in West Bank;2 HCJ 3451/02 Almadani v. Minister of Defence,3 at p. 36).

3. In its struggle against terrorism, Israel has undertakenby virtue of its right of self-defencespecial military operations (Operation Protective Wall which began in March 2002 and Operation Determined Path which began in June 2002 and has not yet ended). The purpose of the operations was to destroy the Palestinian terrorism...