Military Prosecutor v Zuhadi Salah Hassin Zuhad
| Jurisdiction | Israel |
| Date | 11 August 1968 |
| Court | Military Court (Israel) |
Warfare on land Occupation of enemy territory Legislative, judicial and administrative functions of Occupant Authority of regional commander to issue orders by virtue of occupation Limits imposed by requirements of natural justice and international law Hague Convention No. IV, 1907 Geneva Convention relative to Protection of Civilians in Time of War, 1949 International law and municipal law The law of Israel.
Summary.The defendant was charged with various offences arising out of a traffic accident in which he was involved. The charges were laid against him pursuant to Jordanian traffic laws, which were applied to Judea and Samaria by the Traffic Law Ordinance (No. 56) of 1967. Two preliminary pleas were made, calling into question the competence of the Court to deal with the matter and the authority of the West Bank Regional Commander to issue the Order.
The Court held that the Regional Commander possessed authority to issue Orders by reason of the very fact of occupation, restricted only by public international law. The Military Courts had no power to distinguish between Orders so issued even if they exceeded the authority of the Commander except in those extraordinary cases where an Order was patently and manifestly ultra vires. Every Order issued by the Commander was presumptively valid and could only be controverted if it was obviously unreasonable and contrary to the basic principles of natural justice and international morality and intolerable by reason of being arbitrarily enacted with no lawful purpose in mind.
The following is the text of the judgment:
1. Before the defendant was asked to plead to the charge, counsel on his behalf made a number of preliminary submissions. These fell into two groups, one relating to the jurisdiction of this Court to try the defendant and the other relating to the authority of the West Bank Regional Commander to enact the Traffic Law Order (West Bank Region) (No. 56), 57271967 (hereinafter called Order 56).
2. Both submissions depend upon international conventionsthe Hague Convention of 1907 and the Fourth Geneva Convention of 1949 [relative to the Protection of Civilians in Time of War]. The latter (hereinafter called the Convention) was ratified by Israel by deposit of letter of ratification on 6 July 1951, whilst Jordan acceded to it without deposit of ratification on 29 May 1951.
3. Regarding the application of the Convention to the outcome of the Six Day War as a case of partial or total occupation of the territory of a High Contracting Party (Article 2 of the Convention), I have serious doubts whether the Convention has come into operation at all. But this is not the occasion for dealing with the matter. For the purpose of this judgment and because the State of Israel in practice observes the provisions of the Convention, which indeed serves it as a guiding light in crystallizing the humanitarian principles of civilized peoples, I assume that I must resort to the Convention as if it were applicable.
4. Counsel for the defendant argues that the Convention has become part of General Staff Orders, and it is correct that it appears as Schedule 61 thereof. He also argues that the Commander was in breach of General Staff Orders by making Order 56. I do not believe that counsel seriously thinks that his client can or may rely on General Staff Orders or upon a breach thereof which the Commander has supposedly committed in order to move this Court to set aside the latter's Orders. If General Staff Orders are binding upon the Commander and he has supposedly acted in breach of them, then there is someone who is charged with upholding Army Orders and there are suitable means of dealing with such breaches. Schedule 61 vests no right whatsoever in the defendant.
5. Defendant's counsel also argues that the Israel Defence Forces Commander in Judea and Samaria (hereinafter called the the Commander) derives his legislative powers from international law, that is the Convention, and therefore that the defendant may deny the Commander's right to make enactments contary thereto, the Court's jurisdiction to try him under such enactments, and the validity of legislative acts which conflict, so to speak, with international law. To support his contentions counsel cited Sabo v. Military Governor, Jaffa (5 Piske Elyonim 209[1]), but that case is not in point. There the petitioner complained of the Military Governor of Jaffa for intervening in a civil dispute by making an order for the partition of a certain house between the petitioner and his opponent. The question which arose in the Supreme Court was whether the Areas of Jurisdiction and Powers Ordinance made by the sovereign Israel Legislature and laying down that the laws of the State of Israel shall extend to certain territories held by the Israel Defence Forcesand not international lawdeprived the Military Governor of his powers to make the order which he had in fact made.
6. I do not agree with counsel that the Commander derives his legislative powers from the Convention. Nor do I agree with the Military Prosecutor that a Commander stands in the shoes of the sovereign. See on this von Glahn, The Occupation of Enemy Territory (1957), p. 31, and Greenspan. The Modern Law of Land Warfare p. 241.
7. What therefore is the source of the Commander's powers? The answer is that his powers come from the very fact of occupation, but are to some degree restricted by international law. Thus, Rule 43 of the Hague Rules provides that the authority of the legitimate power having in fact passed into the hands of the occupant, : that is, what is involved is the power or authority of the State (not of the sovereign) which has in fact passed to the Occupant. The Occupant therefore draws his authority from the fact that he exercises the
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