Military Prosecutor v Halil Muhamad Mahmud Halil Bakhis

JurisdictionIsrael
Date10 June 1968
CourtMilitary Court (Israel)
Israel, Military Court sitting in Ramallah.
Military Prosecutor
and
Halil Muhamad Mahmud Halil Bakhis and Others.

Warfare on land Occupation of enemy territory Legislative, judicial and administrative functions of Occupant Jurisdiction of military court not dependant on sovereignty Geneva Convention Relative to Protection of Civilians, 1949 Universal Declaration of Human Rights, 1948 (Article 13) The law of Israel.

Summary.The three defendants were caught infiltrating the West Bank from Jordan before they were able to effect their purposes. At their trial, counsel advanced preliminary objections to the jurisdiction of the Court, which called in question the position of Israel in the West Bank.

The Court held that the jurisdiction of the Military Courts did not involve any question of sovereignty but was derived from the Geneva Convention and the lawfully enacted Security Provisions Order, 1967. In addition, the Defence (Emergency) Regulations of 1945 applied to the West Bank, as part of Jordanian law that has never been repealed. The powers of the High Commissioner for Palestine and of the Commander of the British Forces under the Mandate relating to the appointment of military courts in the territory had passed to the Regional Commanders.

The following is the text of the judgment:

Counsel for the three defendants have put in preliminary pleas, mainly of want of jurisdiction. Mrs. Langer urges on behalf of the defendants the following alternative arguments:

(a) This Court has no jurisdiction to try the defendants because the Region (Judea) is not under the sovereignty of Israel but of Jordan.

(b) The Court has no territorial jurisdiction in accordance with section 5 of the Criminal Code Ordinance, 1936.

(c) The jurisdiction of the Court obtains in the place of occupation, but since the defendants do not recognize the occupation they do not recognize the jurisdiction of the Court.

(d) The West Bank was not annexed by the State of Israel nor proclaimed a part of the State of Israel, and therefore no jurisdiction exists.

(e) The Resolution of the Security Council of November 1967 points to withdrawal and therefore again no jurisdiction exists.

For the above reasons counsel seeks to have counts 1, 2, and 3 of the charge sheet struck out by virtue of the powers of the Court under section 82 of the Criminal Procedure Law, 1965.

1. Counsel pleads that the defendants have the right of freedom of movement by virtue of Article 13 of the Universal Declaration of Human...

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