3 September 2002
(HCJ 7015/02; 7019/02)
The Supreme Court, with an expanded panel of nine judges, today gave judgment in two petitions concerning orders made by the IDF Commander in Judaea and Samaria (hereafter: the IDF Commander) against three petitioners. According to the orders, the place of residence of the petitioners – residents of Judaea and Samaria – would be assigned to the Gaza Strip, for a period of two years. The reason underlying the orders was the danger presented by the petitioners because of their involvement in terrorist activities, mainly in their help to family members who were involved in terrorism and carried out many terrorist attacks, and assigning their place of residence would avert this danger.
In the judgment of the Supreme Court, which was written by the President A. Barak, with the agreement of all the members of the panel, it was decided that the IDF Commander was indeed competent to make orders to assign residence. The court pointed out that the basic framework for examining the legality of the actions of the IDF Commander can be found in the provisions of international law and the laws that apply to belligerent occupation. Within this framework, the court said that the circumstances of the case should not be regarded as a deportation or a forcible transfer (within the meaning of art. 49 of the Fourth Geneva Convention) but as assigned residence which is permitted under art. 78 of that Convention.
The court pointed out that, although every person has a basic right to retain his place of residence and to prevent a change of that place, international law itself – in art. 78 of the Fourth Geneva Convention – recognizes that there are circumstances in which this right may be overridden by other interests, namely ‘imperative reasons of security’. Art. 78 of the Fourth Geneva Convention begins:
The court further held that in the circumstances of the case, the preconditions set out in art. 78 of the Fourth Geneva Convention allowing someone’s place of residence to be assigned were fulfilled. Judaea and Samaria and the Gaza Strip should be regarded as one territory subject to a belligerent occupation, and therefore the case did not involve a transfer of a person outside the area subject to the belligerent occupation. It further held that the requirements of the Convention were fulfilled both with regard to an appeals procedure (which was indeed held before the Appeals Board) and with regard to a reconsideration of the decisions (which in the circumstances of the case was to be held every six months).
Against this background, the Supreme Court proceeded to consider the principles governing the IDF Commander’s discretion in making assigned residence orders under art. 78 of the Fourth Geneva Convention. The court emphasized that although the IDF Commander has broad discretion in deciding to assign someone’s place of residence, this is not absolute discretion. It was held in this respect that an essential condition for exercising this authority is the existence of a reasonable possibility that the person himself presents a real danger, and that assigning his place of residence will help to avert this danger. One cannot assign the residence of an innocent relative who does not present a danger, even if it is proved that assigning his residence may deter others from carrying out terrorists acts. One cannot assign the residence of someone who no longer presents a danger. Assigning someone’s place of residence may be done only on the basis of clear and convincing administrative evidence. It must be proportionate. One must also examine, in each case, whether it is not possible, instead of assigning someone’s place of residence, to file a criminal indictment against that person, which will avert the danger that assigned residence is intended to avert.
The Supreme Court held further that if it is proved that a person presents a real danger to the security of the area, it is permissible also to take into account considerations of deterring others. When the condition of a person presenting a danger exists, it was held that it was justified to take into account – when deciding whether to assign his place of residence – the impact of this measure in deterring others from carrying out terrorist acts and helping those carrying out terrorist acts. This consideration could also be taken into account, for example, when choosing between internment and assigned residence. This result, the court said, ‘is required by the harsh reality in which the State of Israel and the territory are situated, in that they are exposed to an inhuman phenomenon of "human bombs" that is engulfing the area’. In this respect, the court accepted the position of the IDF Commander that assigned residence is an effective measure in the struggle against the plague of suicide bombers.
Against this background, the court examined the three cases before it. It was decided, as stated, that the IDF commander has the authority in principle to assign residence under international law. The court decided not to intervene in the decision of the IDF Commander to assign the residence of two of the petitioners: Amtassar Muhammed Ahmed Ajuri, who was held to have helped her terrorist brother Ahmed Ajuri directly, inter alia, by sewing explosive belts; and Kipah Mahmad Ahmed Ajuri, who was held to have helped his brother (the terrorist Ahmed Ajuri), inter alia, by helping him to subsist in a hide-out apartment and by acting as look-out when his brother and members of his group moved two explosive charges from one place to another. With regard to these petitioners, it was held that it had been proved that they were involved in terrorism to the extent required such that they presented a reasonable possibility of a real danger, which would be averted if they were removed from their place of residence, and that therefore there was no reason to intervene in the decision of the IDF Commander to assign their residence.
It was however decided that with regard to the petitioner Abed Alnasser Mustafa Ahmed Asida – the brother of the terrorist Nasser A-Din Asida – the measure of assigned residence could not be adopted. The reason for this was that even though it was proved that this petitioner knew of the deeds of his terrorist brother, his involvement amounted merely to lending his brother a car and giving him clean clothes and food at his home, and no connection had been established between the petitioner’s acts and the terrorist activity of the brother. It was therefore held that there was an inadequate basis for determining the petitioner to be sufficiently dangerous for his residence to be assigned.
The result is that the petitions of two of the petitioners against the assigned residence orders made against them were denied, and the petition of one petitioner was granted, since it was held that his residence could not be assigned on the basis of the evidence against him and the law.
At the end of the judgment the court said:
‘The State of Israel is undergoing a difficult period. Terror is hurting its residents. Human life is trampled upon. Hundred have been killed. Thousands have been injured. The Arab population in Judaea and Samaria and the Gaza Strip is also suffering unbearably. All of this is because of acts or murder, killing and destruction perpetrated by terrorists… The State is doing all that it can in order to protect its citizens and ensure the security of the region. These measures are limited. The restrictions are, first and foremost, military-operational ones. It is difficult to fight against persons who are prepared to turn themselves into living bombs. These restrictions are also normative. The State of Israel is a freedom-seeking democracy. It is a defensive democracy acting within the framework of its right to self-defence – a right recognized by the charter of the United Nations… not every effective measure is also a lawful measure… Indeed, the position of the State of Israel is a difficult one. Also our role as judges is not easy. We are doing all we can to balance properly between human rights and the security of the area. In this balance, human rights cannot receive complete protection, as if there were no terror, and State security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State. It provides a reason for its struggle…’ (para. 41 of the judgment).
Full text of judgment (rtf file)