Christian Society v Minister of Defence

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as the High Court of Justice.
Christian Society for the Holy Places
and
Minister of Defence and Others

War and neutrality Warfare on land Occupation of enemy territory Legislative, judicial and administrative functions of the occupant Military administration of occupied territory Geneva Convention Relative to Protection of Civilian Persons in Time of War, 1949, Article 65 Hague Regulations, 1907, Article 43 Obligation of occupying power to respect law in force in occupied area unless absolutely prevented Duty to restore and ensure as far as possible public order and safety Right of occupant to amend local law for the well being of civil population The law of Israel

Summary: The facts:An industrial dispute having broken out between the petitioner (which conducts a hospital in Bethlehem) and its employees, the responsible officer of the Military Administration in the Region proceeded to put into motion the relevant Jordanian Labour Act of 1960. At one stage under this law it is necessary to appoint an Arbitration Council, composed, inter alia, of representatives of workers and employers selected by their respective organizations. Such organizations did not, however, exist in Jordan. To overcome this difficulty, the Law was amended by providing that where no such organizations existed the workers and employers involved in an industrial dispute were to appoint their own representatives, and if they did not do so, the responsible officer could make the appointment. The amendment was made retroactive. The petitioner challenged the appointments made by the responsible officer.

Held (by a majority):where existing local law did not enable the Military Government to fulfil its duties to the local inhabitants, it was absolutely prevented from respecting that law within the meaning of Article 43 of the Hague Regulations of 1907 and was therefore competent to change the law.

The following is the text of the relevant parts of the majority and minority judgments:

..........

6. Sussman, Deputy President: The first submission of Mr. Tussia-Cohen for the petitioning Society was that the Regional Commander's Order amending the Jordanian Law lacked validity because it exceeded his legislative authority. Counsel based this submission on [the Regulations annexed to] the Fourth Hague Convention of 1907 and on the Geneva Convention regarding the Protection of Civilians in Time of War, which was signed on 12 August 1949 and ratified by Israel on 6 July 1951. These two Conventions create obligations as between the signatory countries alone and form part of international law binding States inter se. Have they the force of law according to which this Court decides domestic disputes between nationals of the State? The Deputy State Attorney informed us that it was not his intention to raise this question since the Regional Commander in practice follows the prescripts of the Conventions and his argument is based on that fact. In view of this statement we are relieved from dealing with the question whether the Conventions are enforceable against the State in this Court, and we shall pass to the substantive aspect of the matter.

Why is the Order inconsistent with the Geneva Convention? Because, so the Society says, Article 65 of the Convention provides that no retroactive effect shall be given to any penal provisions enacted by the Occupying Power. In this regard, counsel for the Society drew our attention to section 106 of the said Act under which an employer may be liable to punishment for an illegal lock-out at his works, and he submits that, the amendment being made applicable to disputes that have broken out before then, the Society now stood in danger of being indicted for an act done in the past.

I cannot accept this submission for several reasons. First, no one has so far claimed that the Society has declared a lock-out of workers. On the contrary, the argument is that the workers have begun an illegal strike and have therefore been lawfully dismissed. It is they who face the risk of an indictment, if at all, and it is they who seek support from the respondent's attempt to settle the dispute. Secondly, if indeed the Society is put on criminal trial, that will be the occasion to make the submission, and the Court will then invalidate the enactment and acquit the Society if it thinks that for one reason or another no criminal sanction is exigible, whereas the proceedings with which we are here concerned are not criminal at all. In view of these two points, I refrain from considering the question whether the enactment has retroactive effect, as the Society argues.

7. What then is the inconsistency between the Commander's Order and the Hague Convention? Here the Society relies upon Article 43 of the Convention [Regulations]:

The authority of the power of the State having passed de facto into the hands of the occupant, the latter shall do all in his power to restore and ensure, as far as possible, public order and safety, respecting at the same time, unless absolutely prevented, the laws in force in the country.

I have cited an English text of Article 43 but I must point out that the French text is...

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