Iwad and Maches v Military Court, Hebron

Date13 October 1970
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as the High Court of Justice
Muhammad Abdullah Iwad and Zeev Shimshon Maches
Military Court, Hebron District, and Military Prosecutor for the West Bank Region, I.D.F.

State territory In general Acquisition of territorial sovereignty Conquest and annexation Situation of place abroad Extension of law, jurisdiction and administration to territory Whether application of foreign law to territory is annexation Status of East Jerusalem The law of Israel

Summary: The facts.The petitioners, who carried on business for the sale of antiquities in east Jerusalem, were charged with the offence of exporting antiquities from Hebron without a licence, contrary to the Antiquities Law of Jordan and the (Israel) Order relating to the Antiquities Ordinance (West Bank Region) No. 119, 57271967. They sought an order against the Military Prosecutor and the Military Court to show cause why the charge should not be dismissed.

Held: The Court discharged the order nisi, and dismissed the petition. The question whether east Jerusalem was abroad as regards Hebron received different answers from the Judges.

The following is the text of the judgment:

Per Witkon J.: The petitioners are residents of Jerusalem and conduct together a shop for the sale of antiquities in east Jerusalem. A charge was laid against them in the Military Court, Hebron District, by the Military Prosecutor for exporting antiquities contrary to section 31 of the Antiquities Law (No. 51), 1966,which is a Jordanian Lawand the Order relating to the Antiquities Ordinance (West Bank Region) (No. 119), 57271967. The particulars of the offence stated that on unknown dates between January and December 1968 the petitioners exported antiquities from the West Bank to their shop in Jerusalem without a licence from the competent authorities. They took a preliminary point before the Military Court but that was rejected by the Court. Accordingly, they seek from us an order against the Military Court and the Military Prosecutor to show cause why the charge should not be dismissed and to explain what offence was committed under Jordanian law by the transfer of antiquities from Hebron to east Jerusalem. Weighty and important questions are likely to arise here, but before us the curtain was kept drawn and we also shall not go behind it. There is no dispute that the offence of which they are accused is defined in section 31 of the Jordanian Antiquities Law in the following terms:

No person shall export abroad any antiquity whatsoever unless he has received a licence therefor from the Minister.

The question is, what for our purposes is abroad. I would have thought that when the question is raised in court whether a particular place is situated within the boundaries of the State or outside, it would be passed on to the competent governmental body and would receive the necessary answer: The FagernesELR [1927] P. 311.[1] But that is not how the Military Court proceeded. Nor were we asked so to proceed by the Deputy State-Attorney.

The Jordanian Antiquities Law extends to the area of the West Bank by virtue of section 2 of Proclamation No. 2 relating to Law and Administration:

The law existing in the Region on 28 Iyar 5727 (7 June 1967) shall remain in force in so far as it is not inconsistent with this Proclamation or any other Proclamation or Order...

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