Jiday v CEO Haifa

• Jurisdiction: Israel
• Date: 04 February 1955
• Court: Supreme Court (Israel)

Israel, Supreme Court (sitting as the High Court of Justice).

(Agranat, Goitein and Berinson JJ.)

Jiday

and

C.E.O. Haifa and Another.

War — Trading with the Enemy — Contracts — Statutory Law and Common Law — Intercourse for Recognized Religious Purposes — Strict Condition rations temporis.

United Nations — Charter of — Objects of — Peaceful Settlement of Disputes — War between Members of the United Nations — General Armistice Agreement between Israel and Lebanon — Termination of War — Absence of Peace — Trading with the Enemy — Contracts.

The Facts.—This was an application for an order that the Chief Execution Officer refrain from executing a judgment rendered against the petitioner by the Court of the Greek Catholic Melkite Community. That Community's Patriarch, who had appointed the members of the Court, resided in Lebanon, a country which refused to maintain normal relations with Israel and, indeed, so it was argued, was in a state of war, or at least not in a state of peace, with Israel. Relations between the two countries, both Members of the United Nations, were governed by the General Armistice Agreement of March 23, 1949 (U.N.T.S., vol. 42, p. 287).

Held: that the application must be dismissed. There was no legal state of war between the two countries, and intercourse between their inhabitants was not illegal except where prohibited by statute. The common law prohibition on trading with the enemy did not apply to intercourse of a religious or spiritual character in the present circumstances. Consequently, there was no objection to the execution of the judgment rendered by this religious Court. Judgment was given by Goitein J., who said on this point:

“The third, and the most interesting, submission put forward by the petitioner relates to the fact that the appointment of the judges who constituted the Appellate Tribunal was made by the Melkite Patriarch, whose residence is in Lebanon. If I understood him correctly, Counsel for the petitioner based his submission on the following propositions:

• a) Lebanon is in a state of war with Israel or at least is not in a state of peace with Israel;

• b) Every person who resides in Lebanon is to be regarded as an enemy with whom all intercourse and contacts are prohibited;

• c) The Melkite Patriarch resides in Lebanon: therefore he is an enemy and as such cannot appoint judges to determine any matter, religious or secular, in Israel;

• d) In consequence, the judges who sat in the present appeal by virtue of an appointment made by the Patriarch in Lebanon, gave a judgment contrary to the law of Israel and therefore the first respondent cannot execute it.

“Counsel for the second respondent stressed that most of those submissions were of a political rather than a legal character. He did not reply seriatim, but argued that all were based on an incorrect supposition of fact, namely, that the Government of Israel does not permit contacts or intercourse with the Patriarch in Lebanon, whereas the opposite is true. The Government of Israel permits Monsignor Hakim to cross the Lebanese frontier in order to meet with the Patriarch and discuss with him religious questions of concern to the Melkite Community.

“It is a matter for regret that Counsel for the petitioner did not fully develop his ideas but merely placed them before us. He quoted no authority in support of the supposed prohibition upon religious intercourse. Nevertheless, the submission is a weighty one and we must deal with it.

“As in many other spheres, so in its relations with its neighbours the State of Israel is unique. It may not be possible to find any direct support for the submissions brought before us, neither in Oppenheim nor in any other book on public international law. But with Lebanon we have a particular Agreement, which clearly defines the legal aspects...