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Tuesday, September 3, 2002
2 of 2 Complete text of the Supreme Court regarding 'assigned

2 of 2 Complete text of the Supreme Court regarding 'assigned residence'
(HCJ 7015/02; 7019/02)
Israel Government Press Office 3 September 2002

32. It seems to us that in the case of the petitioner, the decision of the
Respondent is properly based on the provisions of art. 78 of the Fourth
Geneva Convention and the provisions of the Amending Order. Very grave
behaviour is attributed to the petitioner, and the danger deriving therefrom
to the security of the State is very real. Thus, for example, the petitioner
prepared more than one explosive belt. It was argued before us that the
petitioner did not know about her brother's activity. This story was
rejected by the Appeals Board, and we will not intervene in this finding of
the Appeals Board. The behaviour of the petitioner is very grave. It creates
a significant danger to the security of the area, and it goes well beyond
the minimum level required by the provisions of art. 78 of the Fourth Geneva
Convention and the Amending Order. Indeed, assigning the place of residence
of the petitioner is a rational measure - within the framework of the
required proportionality - to reduce the danger she presents in the future.
We asked counsel for the State why the petitioner is not indicted in a
criminal trial. The answer was that there is no admissible evidence against
her that can be presented in a criminal trial, for the evidence against her
is privileged and cannot be presented in a criminal trial. We regard this as
a satisfactory answer. Admittedly, the petitioner is subject to
administrative internment (which will end in October 2002). However the
possibility of extending this is being considered. It seems to us that the
choice between administrative internment and assigned residence, in the
special case before us, is for the Respondent to make, and if he decided to
terminate the administrative internment and determine instead assigned
residence, there is no basis for our intervention in his decision. This is
the case even if his decision was dictated, inter alia, by considerations of
a general deterrent, which the Respondent was entitled to take into account.
Kipah Mahmad Ahmed Ajuri (the first petitioner in HCJ 7015/02)
33. Kipah Mahmad Ahmed Ajuri (hereafter - the first petitioner) (aged 38)
is married and is the father of three children. He is the brother of the
petitioner. His brother is, as stated, the terrorist Ahmed Ali Ajuri, to
whom very grave terrorist activity is attributed (as we have seen). The
petitioner before us admitted in his police interrogation (on 23 July 2002)
that he knew that his brother Ali Ajuri was wanted by the Israeli security
forces 'about matters of explosions' and was even injured in the course of
preparing an explosive charge. The first petitioner said in his
interrogation that his brother stopped visiting his home because he was
wanted, and also that he carried a pistol and had in his possession two
assault rifles. Later on during his interrogation (on 31 July 2002) he
admitted that he knew that his brother was a member of a military group that
was involved 'in matters of explosions'. He also said that he saw his
brother hide a weapon in the family home under the floor, and that he had a
key to the apartment in which the group stayed and prepared the explosive
charges. He even took from that apartment a mattress and on that occasion he
saw two bags of explosives and from one of these electric wires were
protruding. On another occasion, the first petitioner said in his police
interrogation that he acted as look-out when his brother and members of his
group moved two explosive charges from the apartment to a car that was in
their possession. On another occasion - so the first petitioner told his
interrogators - he saw his brother and another person in a room in the
apartment, when they were making a video recording of a person who was about
to commit a suicide bombing, and on the table in front of him was a Koran.
The first petitioner said in his interrogation that he brought food for his
brother's group.
34. In his testimony before the Appeals Board, the first petitioner
confirmed that he knew that his brother was wanted and that he knew his
friends. He testified that he did indeed have a key to his brother's
apartment and he removed from it a mattress, although he did not know that
the apartment was a hide-out. He confirmed in his testimony that he went to
the apartment and saw two bags there. He confirmed that he saw his brother
make a video recording of someone when a Koran was on the table, and that on
another occasion he saw his brother finish hiding an assault rifle in the
floor of the house. The first petitioner confirmed in his testimony that he
saw his brother and his friends remove from the residential house two bags
and that he was told that they contained explosives, although he said that
he was not asked to be a look-out or warn those present.
35. The Appeals Board examined the statements of the first petitioner and
also the evidence presented to it and the testimony that it heard. It held
in its decision (on 12 August 2002) that the first petitioner was indeed
involved in the activity of his brother Ali Ajuri. The Appeals Board held,
as findings of fact for the purpose of its decision, that the first
petitioner did indeed act as stated in his statements during the
interrogation, and not merely as he said in his testimony. In this respect,
the Board pointed out the fact that the first petitioner was aware of his
brother's deeds, his brother's possession of the weapon and hiding it. The
Board also held that the first petitioner knew of the hide-out apartment,
had a key to it and removed a mattress from it. The Board held that the
first petitioner knew about the explosive charges in the apartment and did
indeed act as a look-out when the charges were moved. The Board further
pointed to the occasion when the first petitioner brought food to the
members of the group, after he saw them make a video recording of a youth
who was about to perpetrate a suicide bombing. The Board said that 'the
gravity of the deeds and the extensive terrorist activity of [the first
petitioner's] brother is very grave. The involvement of [the first
petitioner] with his brother is also grave, and it is particularly grave in
view of the fact that [the petitioner] does not claim that his wanted
brother forced him to help him, from which it follows that he had the option
not to help the brother and collaborate with him.'
36. We think that also in the case of the first petitioner there was no
defect in the decision of the Respondent. The first petitioner helped his
brother, and he is deeply involved in the grave terrorist activity of that
brother, as the Appeals Board determined, and we will not intervene in its
findings. Particularly serious in our opinion is the behaviour of the first
petitioner who acted as a look-out who was supposed to warn his brother when
he was involved at that time in moving explosive charges from the apartment
where he was staying - and from which the first petitioner took a mattress
in order to help his brother - to a car which they used. By this behaviour
the first petitioner became deeply involved in the grave terrorist activity
of his brother and there is a reasonable possibility that he presents a real
danger to the security of the area. Here too we asked counsel for the
Respondent why the first petitioner is not indicted in a criminal trial, and
we were told by him that this possibility is not practical. The measure of
assigning the place of residence of the first petitioner is indeed a
proportionate measure to prevent the danger he presents, since the acts of
this petitioner go far beyond the minimum level required under the
provisions of art. 78 of the Fourth Geneva Convention. Since this is so, the
respondent was entitled to take into account the considerations of a general
deterrent, and so to prefer the assigned residence of this petitioner over
his administrative internment. There is no basis for our intervention in
this decision of the Respondent.
Abed Alnasser Mustafa Ahmed Asida (the second petitioner in HCJ 7015/02)
37. Abed Alnasser Mustafa Ahmed Asida (hereafter - the second petitioner)
(aged 35) is married and a father of five children. He is the brother of the
terrorist Nasser A-Din Asida. His brother is wanted by the security forces
for extensive terrorist activity including, inter alia, responsibility for
the murder of two Israelis in the town of Yitzhar in 1998 and also
responsibility for two terrorist attacks at the entrance to the town of
Immanuel, in which 19 Israelis were killed and many dozens were injured. The
second petitioner was interrogated by the police. He admitted in his
interrogation (on 28 July 2002) that he knew that his brother was wanted by
the Israeli security forces for carrying out the attack on Yitzhar. The
second petitioner said that he gave his brother food and clean clothes when
he came to his home, but he did not allow him to sleep in the house. He even
said that he gave his private car on several occasions to his brother,
although he did not know for what purpose or use his brother wanted the car.
He further said that he stopped giving his brother the car because he was
afraid that the Israeli security forces would assassinate his brother inside
his car. On another occasion, he drove his wanted brother to Shechem
(Nablus), although on this occasion too the second petitioner did not know
the purpose of the trip. The second petitioner also said that he saw his
brother carrying an assault rifle. On another occasion he helped another
wanted person, his brother-in-law, by giving him clean clothes, food and
drink when he visited him in his home, and even lent him his car and drove
him to Shechem several times. While the second petitioner claimed that he
did not know for what purpose the car was used and what was the purpose of
the trips to Shechem, the second petitioner told the police that he drove
his brother to the hospital when he was injured in the course of preparing
an explosive charge and he lent his car - on another occasion - in order to
take another person who was also injured while handling an explosive charge;
at the same time, the second petitioner claimed in his interrogation that he
did not know the exact circumstances of the injury to either of those
injured.
38. In his evidence before the Appeals Board, the second petitioner
confirmed that he knew that his brother was wanted. He testified that he did
indeed drive his brother but he did not give him the car. He testified that
he saw his brother with a weapon and that he wanted to give him food during
the brief visits to him, but he did not have time. The Appeals Board, in its
decision (on 12 August 2002), held that the second petitioner did indeed
know of the deeds of his brother and that he possessed a weapon and that he
was in close contact with him, including on the occasions when he gave him -
at his home - clean clothes and food. The Board held that the second
petitioner did not only drive his wanted brother in his car but also lent
the car to his brother and to another wanted person. The Board pointed out
that 'we are not dealing with minor offences', but it added that 'the
contact between the [second petitioner] and his brother and his material
help to him. are significantly less grave than those of [the first
petitioner]'. The Board added, against this background, that 'we direct the
attention of the area commander to the fact that his personal acts are less
grave than those of [the first petitioner], for the purpose of the
proportionality of the period'.
39. We are of the opinion that there was no basis for assigning the place
of residence of the second petitioner. Admittedly, this petitioner was aware
of the grave terrorist activity of his brother. But this is insufficient for
assigning his place of residence. The active deeds that he carried out, in
helping his brother, fall below the level of danger required under the
provisions of art. 78 of the Fourth Geneva Convention and the provisions of
the Amending Order. His behaviour does not contain such a degree of
involvement that creates a real danger to the security of the area, thereby
allowing his place of residence to be assigned. This petitioner claimed -
and the Appeals Board did not reject this - that he did not know what use
his brother made of the car that the second petitioner made available to
him, and that he did not know, when he drove his brother, what was the
brother's purpose. It should be noted that we think that the behaviour of
the second petitioner - even though it derived from close family ties - was
improper. It is precisely that help that family members give to terrorists
that allows them to escape from the security forces and perpetrate their
schemes. Nonetheless, the mechanism of assigned residence is a harsh measure
that should be used only in special cases in which real danger to security
of the area is foreseen if this measure is not adopted (cf. HCJ 2630/90
Sarachra v. IDF Commander in Judaea and Samaria [33]). We do not think that
the case of the second petitioner falls into this category. It seems to us
that the danger presented to the security of the area by the actions of the
second petitioner does not reach the level required for adopting the measure
of assigned residence. It appears that the Appeals Board was also aware of
this, when it considered the possibility of reducing the period of the
assigned residence. In our opinion, the case of the second petitioner does
not fall within the 'zone of reasonableness' prescribed by art. 78 of the
Fourth Geneva Convention and the Amending Order, and there is no possibility
of assigning the residence of this petitioner. Admittedly, we are prepared
to accept that assigning the place of residence of the second petitioner may
deter others. Nonetheless, this consideration - which may be taken into
account when the case goes beyond the level for adopting the mechanism of
assigned residence - cannot be used when the conditions for exercising art.
78 of the Fourth Geneva Convention and the Amending Order do not exist.
Conclusion
40. Before we conclude, we would like to make two closing remarks. First,
we have interpreted to the best of our ability the provisions of art. 78 of
the Fourth Geneva Convention. According to all the accepted interpretive
approaches, we have sought to give them a meaning that can contend with the
new reality that the State of Israel is facing. We doubt whether the
drafters of the provisions of art. 78 of the Fourth Geneva Convention
anticipated protected persons who collaborated with terrorists and 'living
bombs'. This new reality requires a dynamic interpretive approach to the
provisions of art. 78 of the Fourth Geneva Convention, so that it can deal
with the new reality.
41. Second, 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. Our heart goes out to Mrs Kessler who lost her daughter in a
depraved terrorist act and to all the other Israelis who have lost their
beloved ones or have been themselves severely injured by terrorist attacks.
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. The State seeks to act within the framework of the
lawful possibilities available to it under the international law to which it

is subject and in accordance with its internal law. As a result, not every
effective measure is also a lawful measure. Indeed, the State of Israel is
fighting a difficult war against terror. It is a war carried out within the
law and with the tools that the law makes available. The well-known saying
that 'In battle laws are silent' (inter arma silent leges - Cicero, pro
Milone 11; see also W. Rehnquist, All the Laws but One, 1998, at p. 218)
does not reflect the law as it is, nor as it should be. This was
well-expressed by Lord Atkin in Liversidge v. Anderson [37], at p. 361, when
he said:
'In England amidst the clash of arms the laws are not silent. They may be
changed, but they speak the same language in war as in peace. It has always
been one of the pillars of freedom, one of the principles of liberty for
which. we are now fighting, that the judges. stand between the subject and
any attempted encroachments on his liberty by the executive, alert to see
that any coercive action is justified in law.'
Indeed, '. even when the cannons speak, the military commander must uphold
the law. The power of society to stand against its enemies is based on its
recognition that it is fighting for values that deserve protection. The rule
of law is one of these values' (HCJ 168/91 Morcos v. Minister of Defence
[34], at p. 470). 'We have established here a law-abiding State, that
realizes its national goals and the vision of generations, and does so while
recognizing and realizing human rights in general, and human dignity in
particular' (HCJ 3451/02 Almadani v. Minister of Defence [3], at p. 35).
This was well expressed by my colleague, Justice M. Cheshin, when he said:
'We will not falter in our efforts on behalf of the rule of law. We
committed ourselves by our oath to dispense justice, to be the servants of
the law, and to be faithful to our oath and to ourselves. Even when the
trumpets of war sound, the rule of law makes its voice heard' (Sabiah v. IDF
Commander in Judaea and Samaria [21], at p. 369).
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. Our work, as judges, is hard. But we
cannot escape this difficulty, nor do we wish to do so. I discussed this in
one case, where I said:
'The decision has been placed at our door, and we must rise to the
challenge. It is our duty to protect the legality of executive acts even in
difficult decisions. Even when the cannons speak and the Muses are silent,
law exists and operates, determining what is permitted and what forbidden,
what is lawful and what unlawful. And where there is law, there are also
courts that determine what is permitted and what forbidden, what is lawful
and what unlawful. Part of the public will be happy with our decision;
another part will oppose it. It is possible that neither the former nor the
latter will read the reasoning. But we shall do our work. "This is our duty
and this is our obligation as judges".' (HCJ 2161/96 Sharif v. Home Guard
Commander IsrSC [35], at p. 491, citing the remarks of then-Vice-President
Justice Landau in HCJ 390/79 Dawikat v. Government of Israel [36], at p. 4).

The result is that we are denying the petition in HCJ 7019/02, and the
petition in HCJ 7015/02, in so far as it concerns the first petitioner. We
are making the show-cause order absolute with regard to the second
petitioner in HCJ 7015/02.
Vice-President S. Levin
I agree.

Justice T. Or
I agree.

Justice E. Mazza
I agree.

Justice M. Cheshin
I agree.

Justice T. Strasberg-Cohen
I agree.

Justice D. Dorner
I agree.

Justice Y. T?rkel
I agree.

Justice D. Beinisch
I agree.
3 September 2002.
HCJ 7019/02 - petition denied.
HCJ 7015/02 - petition of the first petitioner denied; petition of the
second petitioner granted.

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