Legal Rules and Anti-Terrorism Warfare: The Case of Mustafa Dirani,
Revisited
INSS Insight No. 685, April 16, 2015
Keren Aviram, Yoram Schweitzer

SUMMARY: On January 15, 2015, an expanded panel of judges of the Israeli
Supreme Court, in a re-hearing (CFH 5698/11), ordered the dismissal of
Mustafa Dirani’s petition against the State of Israel for damages regarding
his claims of being tortured by his interrogators while in custody in
Israel. In this ruling, the Supreme Court expanded the customary common law
rule precluding the examination of an enemy’s claim during wartime and
applied it to members of terrorist organizations operating out of foreign
countries, even if not in a formal state of war with Israel. The expansion
of this legal rule and its adaption to the context of modern anti-terrorism
warfare constitutes an appropriate model that may be adopted by other
countries fighting terrorism, and highlights the interface between judicial
rulings in the national arena and international law.

One of the main challenges facing states currently engaged in modern
asymmetric warfare lies in the discrepancy between legal rules meant to deal
with the realities of classic wars between countries on the one hand, and
the changing and intensifying reality of armed clashes against non-state
actors, led by terrorist organizations, on the other hand. These non-state
actors, such as Hizbollah, Hamas, ISIS, and others, are perhaps best
described as “armies of terrorilla,” given their structure, their level of
training, and their military arsenals, and due to their activity that
integrates tactics of terrorism and guerilla warfare. These groups are
supported by social, economic, political, and religious institutions and
operate out of the very heart of densely populated civilian areas within
failed states and entities. In some cases, the military strength of these
groups even exceeds that of sovereign states. The legal challenges raised by
the struggle against modern armies of terrorilla are particularly salient
given the lack of sufficient legal solutions by international law to many of
the dilemmas faced by the countries fighting such groups. In this situation,
the norms of international law are developed by international tribunals and
often by state judges, which are required to normalize the military activity
of states and adapt the legal rules to suit the emerging reality. In this
context, the Israeli Supreme Court has, in recent years, been contending
with a variety of issues, such as home demolitions, administrative
detentions, the security fence, early warning procedures, targeted killing,
and others, and in the process has contributed to the effort to adapt
international law to the changing reality. A recent example of this dynamic
is the recent Supreme Court ruling in the matter of the civil suit of
Mustafa Dirani.

On January 15, 2015, an expanded panel of Judges of the Israeli Supreme
Court, in a re-hearing (CFH 5698/11) ordered the dismissal of Mustafa Dirani’s
petition against the State of Israel regarding his claims of being tortured
by his interrogators while in custody in Israel.

Dirani, a Lebanese citizen, was an active member of a terrorist group known
as the Believers’ Resistance and, according to Israeli security and legal
authorities, posed a substantial security threat to the state of Israel. In
1994, Dirani was apprehended in Lebanon by Israeli security forces and
placed under administrative detention. In 2000, while in custody in Israel,
Dirani filed a torts action against the State of Israel in the Tel Aviv
District Court for acts of torture, rape, and sodomy allegedly perpetrated
against him by his interrogators. Dirani’s lawsuit demanded (a token sum of)
6 million NIS in damages. In 2004, while the lawsuit was still pending,
Dirani was released as part of a deal in exchange for the release of
Israelis that had been taken prisoner and abducted by Hizbollah and were
being held in Lebanon. Soon after returning to Lebanon, Dirani resumed his
terrorist activities and merged Believers’ Resistance with Hizbollah. In
response, the State of Israel filed a motion with the District Court for the
in limine dismissal of the case, based on the common law rule precluding the
examination of an enemy’s claim during wartime. According to the State, as
long as Dirani was present in Israel, there was nothing preventing the
courts from continuing to examine his claim. However, once he left Israeli
territory for an enemy country and resumed his hostile activity against the
state, it became unsuitable for the courts to continue examining his claim.
The district court dismissed the state’s motion based on the absence of a
provision in Israeli law preventing the continued examination of the claim,
and on the importance of the right to access to the courts. The State then
submitted a request for authorization to appeal the ruling to the Supreme
Court, which was dismissed as well. The Supreme Court ruled that the common
law rule was not applicable because it had not been “incorporated” into
Israeli case law, and that due to the importance of the right of access to
the courts, the claim’s continued examination was not to be prevented.

The State’s request for a rehearing was granted, and the case was heard by
an expanded panel of seven justices. The majority opinion, led by Chief
Justice Asher Grunis, overturned the district court and Supreme Court
rulings on appeal and granted the State’s petition to dismiss Dirani’s
claim. The majority decision was based on the rule precluding the
examination of an enemy’s claim during wartime. This rule, noted Chief
Justice Grunis, is well known in the legal history of other common law
countries and was “incorporated” into Israeli Supreme Court case law, and
therefore continues to constitute part of Israeli law today. According to
Grunis, the rule provides “balance”; on the one hand, it is a sweeping rule
that prevents the examination of the claim of anyone living in an enemy
country, regardless of his or her hostility, and on the other hand, it
places the strict requirement of a “formal state of war” between the parties
and limits applicability to the duration of the war. Because no formal state
of war exists between Israel and Lebanon but rather an ongoing armed
conflict, Chief Justice Grunis elected to take the rule in question one step
further and adapt it to the anti-terrorism warfare of the modern era. This
warfare, he noted, is characterized by a transition from inter-state
conflicts to an increasing effort to contend with the activities of
terrorist organizations. This effort is not the domain of the State of
Israel alone but is shared by many other countries in the Western world,
thus raising the need to reshape the existing legal rules in light of the
characteristics of anti-terrorism warfare. On this basis, Chief Justice
Grunis expanded the common law rule to include armed conflicts between
Israel and terrorist organizations in such a way that “the balance in these
circumstances is required to be different, so that in the case of an armed
conflict with a terrorist organization operating from within a foreign
country that does not reach the level of a formal state of war between
countries, the rule precluding the examination of an enemy’s claim will be
applicable to claimants in foreign countries who are active in terrorist
organizations.”

Nonetheless, Chief Justice Grunis left the questions pertaining to the
applicability of this expanded rule to terrorist activists in Israel, and to
terrorist activists in the territories under Israeli belligerent occupation,
in need of further clarification. Another related issue is the meaning of
the phrase “activist in a terrorist organization” and the required
relationship between the claimant and terrorist activity – questions about
which, in the case in question, no doubts exist. The ruling also determined
that the common law rule’s expansion to terrorist activists located in
foreign countries is also consistent with current standard requirements
regarding the protection of human rights.



As observed by Justice Rubinstein, the importance of the ruling lies not in
its concrete results but rather in its impact on the future and its role in
setting down policy for other contexts. After all, the Court will likely be
faced with additional terrorism cases in the future, and the dynamism of the
fight against terrorism does not allow anticipation of all potential
situations.


The changing reality of different arenas of warfare often reaches the
courts, awaiting solutions to provide legal normalization of elements of
warfare. The classical (and legally regulated) warfare between countries has
all but vanished from the landscape. It has been replaced by armed conflicts
between one country, or a coalition of countries, on the one hand, and armed
terrorist organizations and non-state militias on the other. These conflicts
frequently pose legal dilemmas and challenges that have not yet been
normalized in international law in a comprehensive manner. The ruling in the
Dirani case provides an illustration of the development of legal rules and
their adaption, by state courts, to the characteristics of modern
anti-terrorist warfare. As long as terrorist organizations around the world
continue to increase in strength into armies of terrorilla, similar in
character to state armies (in terms of military power, the security risk
they pose, and the scope and duration of their activity), the situation will
require renewed thinking with regard to the legal status of their members,
as well as to other currently disputed issues that have been presented to
the courts. These challenges require effective adaption of the legal rules
of modern warfare.


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