Attorney-General v Sylvester

CourtSupreme Court (Israel)
Date08 February 1949
Docket NumberCase No. 190
Israel, District Court of Jerusalem.
Supreme Court.
Case No. 190
Attorney-General for Israel

State Succession — Binding Force of Laws and Judgments — Termination of Palestine Mandate — Continuance of Official Secrets Ordinance.

War Crimes — Punishment of — Espionage — Right of Belligerent State to Punish.

Belligerent Occupation — Legislative Functions of Occupant — Article 43 of Hague Regulations — Competent Legislative Organ — State Succession — Binding Force of Laws and Judgments — Termination of Palestine Mandate — Espionage — Whether a War Crime — Right of Belligerent State to Punish.

The Facts.—On May 15, 1948, by operation of the Palestine Act, 1948 (11 & 12 Geo. 6, c. 27), the British Mandate for Palestine came to an end. On the same date the independence of the State of Israel was proclaimed (Official Gazette of the Provisional Government of Israel, No. 1, p. 1). On May 19, 1948, the Provisional Council of State adopted the Administration and Justice Ordinance 5708—1948 (ibid., No. 2, Suppl. No. 1, p. 1). Section 11 of that Ordinance provided that the existing law was to remain in force in so far as it was consistent with the Ordinance and other laws to be issued by the Provisional Council of State or under its authority, and subject to such modifications as were rendered necessary by the establishment of the State of Israel and its organs. The Ordinance was given retroactive effect to May 15, 1948.

The proclamation of independence did not define the boundaries of the State, but a Resolution of the General Assembly of the United Nations of November 29, 1947, to which reference was made in its preamble, provided that Jerusalem should become an independent entity, not forming part of either the Jewish or the Arab State. During the fighting which followed the establishment of the new State, a large part of the city was occupied by Israeli forces. On August 2, 1948, the Minister of Defence issued the following proclamation, which was confirmed by the Area of Jurisdiction and Authority Ordinance No. 29 of 1948:

“Whereas the area of Jerusalem, including the greater part of the City, part of its environs and its western approaches, is occupied by the Defence Army of Israel, which is subject to my authority; And whereas it is incumbent upon the Defence Army of Israel to maintain public peace and security within the area occupied by it and to provide for law and justice; I … hereby proclaim in the name of the High Command of the Defence...

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