Diab v Attorney-General

CourtSupreme Court (Israel)
Date02 December 1952
Docket NumberCase No. 115
Israel, Supreme Court sitting as Court of Criminal Appeals.

(Smoira C. J.; Silberg and Vitkon JJ.)

Case No. 115

War — In General — Civil War — Distinction between Civil Commotion, Civil War and International War — Palestine — Arab-Jewish Hostilities Prior to Termination of Mandate — Effect of Termination of Mandate and Invasion by Arab States.

Recognition — Of States — Effect of Non-Recognition on Nature of Hostilities — Non-Recognition of Israel by Arab States.

War — Commencement and Termination of — Effect of General Armistice Agreement.

The Facts.—This was an appeal from a conviction under section 53 (a) of the Criminal Code Ordinance, 1953, by which “any person who:—without lawful authority carries on or makes preparation for carrying on, or aids in, or advises the carrying on, or preparation for, any war or warlike undertaking with, for, by or against any section, race or body of persons in Palestine (Israel) … is guilty of a felony …” The marginal note to this section is: “Promoting civil war”.

Diab was born in a village in Lower Galilee. During the time of the Mandate he had served for a short while as a medical orderly in the Transjordanian Frontier Force, and in March 1948, as the Mandate was drawing to its close, he was discharged and returned to his native village. About that time it appears that he volunteered for the “Arab Liberation Army”, an irregular force operating in that district both before and after the establishment of the State of Israel. The village of the accused was occupied by the Israel Army in October 1948. On the happening of that event, the accused remained in his village and was registered under the (Israel) Registration of Inhabitants Ordinance. The lower Court found, on these facts, that, during the relevant period, that is to say, at the end of 1948, Diab was an inhabitant of Israel, living in the said village. At the beginning of December 1948, in the middle of the night, Diab crossed the Israel-Lebanese frontier and re-enlisted in the Arab Liberation Army, in which he served for some six months. On his return to Israel he was accused under the above section of the Criminal Code Ordinance and was sentenced to seven years' imprisonment.

On appeal against this conviction,

Held: that the fighting between Israel and the Arab States in 1948 was not civil war. The appeal was admitted, and the accused released. The judgment of the Supreme Court was given by Silberg J., who said:

“If the language of section 53 (a) is not as clear as it might be, all doubts are removed by the...

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