1 of 2 Complete text of the Supreme Court regarding 'assigned residence'
(HCJ 7015/02; 7019/02)
Israel Government Press Office 3 September 2002
1. Kipah Mahmad Ahmed Ajuri
2. Abed Alnasser Mustafa Ahmed Asida
3. Centre for the Defence of the Individual
1. IDF Commander in West Bank
2. IDF Commander in Gaza Strip
3. Bridget Kessler
1. Amtassar Muhammed Ahmed Ajuri
2. Centre for the Defence of the Individual
3. Association for Civil Rights in Israel
1. IDF Commander in Judaea and Samaria
2. IDF Commander in Gaza Strip
3. Bridget Kessler
The Supreme Court sitting as the High Court of Justice
[3 September 2002]
Before President A. Barak, Vice-President S. Levin, Justices T. Or, E.
Mazza, M. Cheshin, T. Strasberg-Cohen, D. Dorner, Y. T?rkel, D. Beinisch
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: The IDF Commander in Judaea and Samaria made orders requiring three
residents of Judaea and Samaria to live, for the next two years, in the Gaza
Strip. The orders were approved by the Appeals Board. The three residents of
Judaea and Samaria petitioned the High Court of Justice against the orders.
The petitioners argued that the orders were contrary to international law.
In particular the petitioners argued that Judaea and Samaria should be
regarded as a different belligerent occupation from the one in the Gaza
Strip, and therefore the orders amounted to a deportation from one territory
to another, which is forbidden under international law (art. 49 of the
Fourth Geneva Convention).
The respondents, in reply, argued that the orders complied with
international law. The respondents argued that the belligerent occupation of
Judaea, Samaria and the Gaza Strip should be considered as one territory,
and therefore the orders amounted merely to assigned residence, which is
permitted under international law (art. 78 of the Fourth Geneva Convention).
A further question that arose was whether the IDF commander could consider
the factor of deterring others when making an order of assigned residence
against any person.
Held: Article 78 of the Fourth Geneva Convention empowers an occupying power
to assign the place of residence of an individual for imperative reasons of
security. Assigned residence is a harsh measure only to be used in extreme
cases. However, the current security situation in which hundreds of
civilians have been killed by suicide bombers justifies the use of the
measure in appropriate cases.
Judaea and Samaria and the Gaza Strip are effectively one territory subject
to one belligerent occupation by one occupying power, and they are regarded
as one entity by all concerned, as can be seen, inter alia, from the
Israeli-Palestinian interim agreements. Consequently, ordering a resident of
Judaea and Samaria to live in the Gaza Strip amounts to assigned residence
permitted under art. 78 of the Fourth Geneva Convention, and not to a
deportation forbidden under art. 49 of the Fourth Geneva Convention.
An order of assigned residence can be made against a person only if there is
a reasonable possibility that the person himself presents a real danger to
the security of the area. If he does not, considerations of deterring others
are insufficient for making an order of assigned residence. But if such a
danger does exist, the IDF commander is authorized to make an order of
assigned residence, and he may consider the deterrent factor in deciding
whether actually to make the order or not.
The Appeals Board found that the petitioner in HCJ 7019/02 had sewn
explosive belts. The Appeals Board found that the first petitioner in HCJ
7015/02 had acted as a lookout for a terrorist group when they moved
explosive charges. In both these cases, the Supreme Court held that the
deeds of the petitioners justified assigned residence, and it upheld the
orders. However, with regard to the second petitioner in HCJ 7015/02, the
Appeals Board found only that he had given his brother, a wanted terrorist,
food and clothes, and had driven him in his car and lent him his car,
without knowing for what purpose his brother needed to be driven or to
borrow his car. The Supreme Court held that the activities of the second
petitioner were insufficient to justify the measure of assigned residence,
and it set aside the order of assigned residence against him.
HCJ 7019/02 - petition denied.
HCJ 7015/02 - petition of the first petitioner denied; petition of the
second petitioner granted.
Defence (Emergency) Regulations, 1945, r. 119.
Security Provisions (Judaea and Samaria) Order (no. 378), 5730-1970, ss.
84(a), 84A, 86, 86(b)(1), 86(e), 86(f).
Security Provisions (Judaea and Samaria) (Amendment no. 84) Order (no. 510),
Security Provisions (Gaza Strip) (Amendment no. 87) Order (no. 1155),
International conventions cited:
Fourth Geneva Convention relative to the Protection of Civilian Persons in
Time of War, 1949, arts. 49, 78.
Fourth Hague Convention respecting the Laws and Customs of War on Land,
Israeli Supreme Court cases cited:
 HCJ 2936/02 Doctors for Human Rights v. IDF Commander in West Bank IsrSC
 HCJ 2117/02 Doctors for Human Rights v. IDF Commander in West Bank IsrSC
 HCJ 3451/02 Almadani v. Minister of Defence IsrSC 56(3) 30.
 HCJ 393/82 Almashulia v. IDF Commander in Judaea and Samaria IsrSC 37(4)
 HCJ 102/82 Zemel v. Minister of Defence IsrSC 37(3) 365.
 HCJ 574/82 El Nawar v. Minister of Defence (unreported).
 HCJ 615/85 Abu Satiha v. IDF Commander (unreported).
 HCJ 785/87 Abed El-Apu v. IDF Commander in West Bank IsrSC 42(2) 4.
 HCJ 7709/95 Sitrin v. IDF Commander in Judaea and Samaria (not
 HCJ 1361/91 Mesalem v. IDF Commander in Gaza Strip IsrSC 45(3) 444.
 HCJ 554/81 Beransa v. Central Commander IsrSC 36(4) 247.
 HCJ 814/88 Nasralla v. IDF Commander in West Bank IsrSC 43(2) 265.
 HCJ 2006/97 Janimat v. Central Commander IsrSC 51(2) 651.
 CrimApp 4920/02 Federman v. State of Israel (unreported).
 CrimFH 7048/97 A v. Minister of Defence IsrSC 54(1) 721.
 HCJ 159/94 Shahin v. IDF Commander in Gaza Strip IsrSC 39(1) 309.
 HCJ 8259/96 Association for Protection of Jewish Civil Rights v. IDF
Commander in Judaea and Samaria (unreported).
 HCJ 253/88 Sejadia v. Minister of Defence IsrSC 43(3) 801.
 HCJ 5667/91 Jabrin v. IDF Commander in Judaea and Samaria IsrSC 46(1)
 HCJ 5510/92 Turkeman v. Minister of Defence IsrSC 42(1) 217.
 HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria IsrSC 50(1)
 HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport IsrSC
 HCJ 3643/97 Stamka v. Minister of Interior IsrSC 53(2) 730.
 HCJ 4644/00 Jaffora Tavori v. Second Television and Radio Authority
IsrSC 54(4) 178.
 HCJ 4915/00 Communications and Productions Co. Network (1988) v.
Government of Israel IsrSC 54(5) 451.
 HCJ 1030/99 Oron v. Knesset Speaker (not yet reported).
 HCJ 3114/02 Barake v. Minister of Defence IsrSC 56(3) 11.
 HCJ 680/88 Schnitzer v. Chief Military Censor IsrSC 42(4) 617; IsrSJ 9
 HCJ 619/78 'Altaliya' Weekly v. Minister of Defence IsrSC 33(3) 505.
 HCJ 4541/94 Miller v. Minister of Defence IsrSC 49(4) 94.
 HCJ 1005/89 Agga v. IDF Commander in Gaza Strip IsrSC 44(1) 536.
 HCJ 24/91 Rahman v. IDF Commander in Gaza Strip IsrSC 45(2) 325.
 HCJ 2630/90 Sarachra v. IDF Commander in Judaea and Samaria
 HCJ 168/91 Morcos v. Minister of Defence IsrSC 45(1) 467.
 HCJ 2161/96 Sharif v. Home Guard Commander IsrSC 50(4) 485.
 HCJ 390/79 Dawikat v. Government of Israel IsrSC 34(1) 1.
English cases cited:
 Liversidge v. Anderson  3 All ER 338.
Jewish Law sources cited:
 Deuteronomy 24, 16.
For the petitioners in HCJ 7015/02 - L. Zemel, Y. Wolfson.
For the petitioners in HCJ 7019/02 - D. Yakir, M. Hazan.
For respondents 1-2 in both petitions - A. Helman, S. Nitzan
President A. Barak
The military commander of the Israel Defence Forces in Judaea and Samaria
made an 'order assigning place of residence'. According to the provisions of
the order, the petitioners, who are residents of Judaea and Samaria, were
required to live for the next two years in the Gaza Strip. Was the military
commander authorized to make the order assigning place of residence? Did the
commander exercise his discretion lawfully? These are the main questions
that arise in the petitions before us.
1. Since the end of September 2000, fierce fighting has been taking place in
Judaea, Samaria and the Gaza Strip. This is not police activity. It is an
armed struggle. Within this framework, approximately 14,000 attacks have
been made against the life, person and property of innocent Israeli citizens
and residents, the elderly, children, men and women. More than six hundred
citizens and residents of the State of Israel have been killed. More than
4,500 have been wounded, some most seriously. The Palestinians have also
experienced death and injury. Many of them have been killed and wounded
since September 2000. Moreover, in one month alone - March 2002 - 120
Israelis were killed in attacks and hundreds were wounded. Since March 2002,
as of the time of writing this judgment, 318 Israelis have been killed and
more than 1,500 have been wounded. Bereavement and pain overwhelm us.
2. Israel's fight is complex. The Palestinians use, inter alia, guided human
bombs. These suicide bombers reach every place where Israelis are to be
found (within the boundaries of the State of Israel and in the Jewish
villages in Judaea and Samaria and the Gaza Strip). They sew destruction and
spill blood in the cities and towns. Indeed, the forces fighting against
Israel are terrorists; they are not members of a regular army; they do not
wear uniforms; they hide among the civilian Palestinian population in the
territories, including in holy sites; they are supported by part of the
civilian population, and by their families and relatives. The State of
Israel faces a new and difficult reality, as it fights for its security and
the security of its citizens. This reality has found its way to this court
on several occasions (see HCJ 2936/02 Doctors for Human Rights v. IDF
Commander in West Bank ; HCJ 2117/02 Doctors for Human Rights v. IDF
Commander in West Bank ; HCJ 3451/02 Almadani v. Minister of Defence ,
at p. 36).
3. In its struggle against terrorism, Israel has undertaken - by virtue of
its right of self-defence - special military operations (Operation
'Protective Wall' which began in March 2002 and Operation 'Determined Path'
which began in June 2002 and has not yet ended). The purpose of the
operations was to destroy the Palestinian terrorism infrastructure and to
prevent further terrorist attacks. In these operations, IDF forces entered
many areas that were in the past under its control by virtue of belligerent
occupation and which were transferred pursuant to agreements to the (full or
partial) control of the Palestinian Authority. The army imposed curfews and
closures on various areas. Weapons and explosives were rounded up. Suspects
were arrested. Within the framework of these operations, many reserve forces
were mobilized; heavy weapons, including tanks, armoured personnel carriers,
assault helicopters and aeroplanes, were used.
4. The special military operations did not provide an adequate response to
the immediate need to stop the grave terrorist acts. The Ministerial
Committee for National Security sought to adopt several other measures that
were intended to prevent further terrorist acts from being perpetrated, and
to deter potential attackers from carrying out their acts. The opinion of
the Attorney-General was sought; in his opinion of 19 July 2002, the
Attorney-General determined the legal parameters for the actions of the
security forces. Consequently, the Ministerial Committee for National
Security met on 31 July 2002 and decided to adopt additional measures, in
accordance with the criteria laid down by the Attorney-General.
5. One of the measures upon which the Ministerial Committee for National
Security decided - all of which within the framework of the Attorney-General
's opinion - was assigning the place of residence of family members of
suicide bombers or the perpetrators of serious attacks and those sending
them from Judaea and Samaria to the Gaza Strip, provided that these family
members were themselves involved in the terrorist activity. This measure was
adopted because, according to the evaluation of the professionals involved
(the army, the General Security Service, the Institute for Intelligence and
Special Tasks (the Mossad), and the police), these additional measures might
make a significant contribution to the struggle against the wave of terror,
resulting in the saving of human life. This contribution is two-fold: first,
it can prevent a family member involved in terrorist activity from
perpetrating his scheme (the preventative effect); second, it may deter
other terrorists - who are instructed to act as human bombs or to carry out
other terror attacks - from perpetrating their schemes (the deterrent
The Amending Order assigning place of residence
6. In order to give effect to the new policy, on 1 August 2002 the military
commander of the IDF forces in Judaea and Samaria amended the Security
Provisions (Judaea and Samaria) Order (no. 378), 5730-1970 (hereafter - the
Original Order). This Order determined provisions, inter alia, with regard
to special supervision (s. 86). These allow instructions to be given that a
person should be placed under special supervision. According to the
provisions of the Original Order, no authority should be exercised
thereunder unless the military commander is of the opinion 'that it is
imperative for decisive security reasons' (s. 84(a)). An order of special
supervision may be appealed before the Appeals Board (s. 86(e)). The Appeals
Board is appointed by the local commander. The chairman of the Appeals Board
is a judge who is a jurist. The Board's role is to consider the order made
under this section and to make recommendations to the military commander. If
a person appeals an order and the order is upheld, the Appeals Board will
consider his case at least once every six months whether that person
submitted a further appeal or not (s. 86(f)). The application of the
Original Order was limited to Judaea and Samaria. The amendment that was
made extended its application to the Gaza Strip as well (the Security
Provisions (Judaea and Samaria) (Amendment no. 84) Order (no. 510),
5762-2002 (hereafter - the Amending Order)). The provisions of the Amending
Order (s. 86(b)(1) after the amendment) provide:
'Special supervision and assigning a place of residence'
a. A military commander may direct in an order that a person shall be
subject to special supervision.
b. A person subject to special supervision under this section shall be
subject to all or some of the following restrictions, as the military
commander shall direct:
(1) He shall be required to live within the bounds of a certain place in
Judaea and Samaria or in the Gaza Strip, as specified by the military
commander in the order.'
In the introduction to the Amending Order it is stated that is was made 'in
view of the extraordinary security conditions currently prevailing in Judaea
and Samaria, and because reasons of security in Judaea and Samaria and
public security so require, and because of the need to contend with acts of
terror and their perpetrators'. It was also stated in the introduction that
the order was made 'after I obtained the consent of the IDF military
commander in the Gaza Strip'. Indeed, in conjunction with the Amending
Order, the IDF commander in the Gaza Strip issued the Security Provisions
(Gaza Strip) (Amendment no. 87) Order (no. 1155), 5762-2002. Section 86(g)
of this order provided that:
'Someone with regard to whom an order has been made by the military
commander in Judaea and Samaria under section 86(b)(1) of the Security
Provisions (Judaea and Samaria) Order (no. 378), 5730-1970, within the
framework of which it was provided that he will be required to live in a
specific place in the Gaza Strip, shall not be entitled to leave that place
as long as the order is in force, unless the military commander in Judaea
and Samaria or the military commander in the Gaza Strip so allow.'
Under the Amending Order, orders were made assigning the place of residence
of the three petitioners before us. Let us now turn to these orders and the
circumstances in which they were made.
The proceedings before the military commander and the Appeals Board
7. On 1 August 2002, the IDF commander in Judaea and Samaria (hereafter -
the Respondent) signed orders assigning the place of residence of each of
the petitioners. These orders state that they were made under the Amending
Order and after obtaining the consent of the IDF commander in the Gaza
Strip. They also state that they were made because the Respondent is of the
opinion that 'they are essential for decisive security reasons, and because
of the need to contend with acts of terror and their perpetrators'. These
orders require each of the petitioners to live in the Gaza Strip. The orders
state that they will remain valid for a period of two years. The orders
further state that they may be appealed to the Appeals Board. Underlying
each of the orders are facts - which we will consider below - according to
which each of the petitioners was involved in assisting terrorist activity
that resulted in human casualties. In the opinion of the Respondent,
assigning the place of residence of the petitioners to the Gaza Strip will
avert any danger from them and deter others from committing serious acts of
terror. The petitioners appealed the orders before the Appeals Board. A
separate hearing was held with regard to the case of each of the
petitioners, before two Appeals Boards. Each of the Boards held several days
of hearings. The Boards decided on 12 August 2002 to recommend to the
Respondent that he approve the validity of the orders. The Respondent
studied the decision of the Boards and decided on the same day that the
orders would remain valid. On 13 August 2002, the petitions before us were
submitted against the Respondent's decision.
The proceedings before us
8. When the petitions were submitted before us, a show-cause order was
issued on the same day in both petitions. An interim order was also issued,
which prevented the forcible assignment of the place of residence of the
petitioners to the Gaza Strip until further decision. When the State's
response was received, a hearing was held on 19 August 2002 before a panel
of three justices. The panel decided to hear the two petitions together. It
also decided to grant the petitioners' application to submit two opinions by
international law experts on the subject of the petitions, one by Prof.
Schabas and the other by Ms Doswald-Beck and Dr Seiderman. Finally it
decided to expand the panel. The panel was indeed expanded in accordance
with that decision, and on 26 August 2002 a hearing was held at which
arguments were heard from the parties.
9. Counsel for the petitioners argued before us that the Amending Order, the
individual orders issued thereunder and the decisions of the Appeals Boards
should be set aside, for several reasons. First, there were defects in the
proceedings that took place before the Respondent and the Appeals Board (in
HCJ 7015/02). Second, there was an inadequate factual basis for the
decisions of the respondents and there was no justification for the harsh
measure ordered against them - especially when its purpose was merely
deterrence. Third, the Amending Order was made without authority, because
the Respondent was not competent to make an order concerning the Gaza Strip.
Finally - and this argument was the focus of the hearing before us - the
Amending Order is void because it is contrary to international law. Counsel
for the Respondent argued before us that the petitions should be denied.
According to him, the Amending Order, and the individual orders made
thereunder, are proper and they and the proceeding in which they were made
are untainted by any defect. The respondent was competent to make the
Amending Order, and the individual orders are lawful, since they are
intended to prevent the petitioners from realizing the danger that they
present, and they contain a deterrent to others. The orders are
proportionate. They are lawfully based on the factual basis that was
presented to the commander and the Appeals Boards. According to counsel for
the Respondent, the Amending Order and the orders made thereunder conform to
international law, since they fall within the scope of article 78 of the
Fourth Geneva Convention of 1949 (Geneva Convention IV relative to the
Protection of Civilian Persons in Time of War, 1949; hereafter - the Fourth
10. Before the hearing began, Mrs Bridget Kessler made an application to be
joined as a respondent to the petitions. We granted the application. Mrs
Bridget Kessler is the mother of Gila Sara Kessler, of blessed memory, who
was murdered in the terrorist attack on 19 June 2002 at the French Hill
crossroads in Jerusalem. The attack was perpetrated by a suicide bomber who
blew himself up near a bus stop. The explosion killed seven Jews including
Mrs Kessler's nineteen-year-old daughter, who merely wanted to go home from
work. Mrs Kessler spoke before us quietly and evocatively. She regarded
herself as the representative of all those who were harmed by the terrorist
attacks that have befallen us. She emphasized the moral aspect in assigning
the residence of the petitioners to the Gaza Strip, and supported the
position of counsel for the Respondent. Another applicant asked to be joined
as a respondent, but he did not trouble to come on the date fixed, and his
application was denied without any consideration of it on the merits.
11. In the course of their arguments, counsel for the petitioners applied to
submit before us affidavits of the petitioners. These affidavits were
unsigned. The purpose of submitting them was to declare their position with
regard to their personal circumstances. We dismissed this application both
because of the procedural defects in the affidavits and also because they
contained nothing that added anything to the actual arguments of the
petitioners. At the end of the arguments of counsel for the Respondent, he
asked us to hear General Ashkenazi, the Deputy Chief-of-Staff, with regard
to the security background that was the basis for the Respondent's decision.
We denied this application. Our position is that the security position was
presented in full before the Appeals Boards that gave expression to it, and
there was no reason for an extension of this framework.
12. As we have seen, the arguments before us concern various aspects of the
decision of the Respondent and the Appeals Board. We should state at the
outset that we found no basis to the arguments about procedural defects in
the decision of the Respondent or in the decisions of the Appeals Boards. We
do not think that in the proceedings that took place before the Boards
(mainly in the case of the petitioners in HCJ 7015/02) there were defects
that justify setting aside the proceeding or its conclusions. The same is
true of the arguments regarding prejudice on the part of the Board; not
being given a full opportunity to be heard; prima facie ignoring factual and
legal arguments and the Board hearing the Respondent's witnesses; this is
also the case with regard to not hearing certain witnesses or
cross-examining them and allowing the Respondent to submit material. We have
studied these arguments, the decisions of the Board and the material before
us. We are satisfied - for the reasons stated in the State's reply - that
the proceeding that took place was duly held and it does not justify our
intervention in this framework, and that the defects that occurred -
according to the petitioners - do not justify in themselves setting aside
the decisions that were made, either by the Boards or by the commander.
Indeed, the main matters on which the parties concentrated their arguments -
and on which we too will focus - concern the following three questions:
first, was the military commander competent, under the provisions of
international law, to make the Amending Order? This question concerns the
authority of a military commander under international law to make
arrangements with regard to assigning a place of residence. Second, if the
answer to the first question is yes, what are the conditions required by
international law for assigning a place of residence? This question concerns
the scope of the military commander's discretion under international law in
so far as assigning a place of residence is concerned. Third, do the
conditions required by international law for making the orders to assign a
place of residence exist in the case of the petitioners before us? This
question concerns the consideration of the specific case of the petitioners
before us in accordance with the laws that govern their case. Let us now
turn to consider these questions in their proper order.
The authority of the military commander to assign a place of residence
13. Is the military commander of a territory under belligerent occupation
competent to determine that a resident of the territory shall be removed
from his place of residence and assigned to another place of residence in
that territory? It was argued before us that the military commander does not
have that authority, if only for the reason that this is a forcible transfer
and deportation that are prohibited under international law (article 49 of
the Fourth Geneva Convention). Our premise is that in order to answer the
question of the military commander's authority, it is insufficient to
determine merely that the Amending Order (or any other order of the
commander of the territory) gives the military commander the authority to
assign the place of residence of a resident of the territory. The reason for
this is that the authority of the military commander to enact the Amending
Order derives from the laws of belligerent occupation. They are the source
of his authority, and his power will be determined accordingly. I discussed
this in one case, where I said:
'From a legal viewpoint the source for the authority and the power of the
military commander in a territory subject to belligerent occupation is in
the rules of public international law relating to belligerent occupation
(occupatio bellica), and which constitute a part of the laws of war' (HCJ
393/82 Almashulia v. IDF Commander in Judaea and Samaria , at p. 793).
In this respect, I would like to make the following two remarks: first, all
the parties before us assumed that in the circumstances currently prevailing
in the territory under the control of the IDF, the laws of international law
concerning belligerent occupation apply (see, in this regard, HCJ 102/82
Zemel v. Minister of Defence , at p. 373; HCJ 574/82 El Nawar v. Minister
of Defence ; HCJ 615/85 Abu Satiha v. IDF Commander ); second, the
rules of international law that apply in the territory are the customary
laws (such as the appendix to the (Fourth) Hague Convention respecting the
Laws and Customs of War on Land of 1907, which is commonly regarded as
customary law; hereafter - the Fourth Hague Convention). With regard to the
Fourth Geneva Convention, counsel for the Respondent reargued before us the
position of the State of Israel that this convention - which in his opinion
does not reflect customary law - does not apply to Judaea and Samaria.
Notwithstanding, Mr Nitzan told us - in accordance with the long-established
practice of the Government of Israel (see M. Shamgar, 'The Observance of
International Law in the Administered Territories', 1 Isr. Y. H. R. 1971,
262) - that the Government of Israel decided to act in accordance with the
humanitarian parts of the Fourth Geneva Convention. In view of this
declaration, we do not need to examine the legal arguments concerning this
matter, which are not simple, and we may leave these to be decided at a
later date. It follows that for the purpose of the petitions before us we
are assuming that humanitarian international law - as reflected in the
Fourth Geneva Convention (including article 78) and certainly the Fourth
Hague Convention - applies in our case. We should add that alongside the
rules of international law that apply in our case, the fundamental
principles of Israeli administrative law, such as the rules of natural
justice, also apply. Indeed, every Israeli soldier carries in his pack both
the rules of international law and also the basic principles of Israeli
administrative law that are relevant to the issue. Therefore the question
remains: is the military commander competent under the rules of belligerent
occupation to determine provisions regarding the forcible assigned residence
of a person from his place of residence to another place in the territory
under his control?
14. The fundamental premise is that the displacement of a person from his
place of residence and his forcible assignment to another place seriously
harms his dignity, his liberty and his property. A person's home is not
merely a roof over his head, but it is also a means for the physical and
social location of a person, his private life and his social relationships
(see M. Stavropoulou, 'The Right not to be Displaced', 9 Am. U. J. Int'l L.
& Pol'y, 1994, at pp. 689, 717). Several basic human rights are harmed as a
result of an involuntary displacement of a person from his home and his
residence being assigned to another place, even if this assigned residence
does not involve him crossing an international border (see F. M. Deng,
Internally Displaced Persons: Compilation and Analysis of Legal Norms, 1998,
14). These human rights derive in part from the internal law of the various
countries, and are in part enshrined in the norms of international law.
15. The rights of a person to his dignity, his liberty and his property are
not absolute rights. They are relative rights. They may be restricted in
order to uphold the rights of others, or the goals of society. Indeed, human
rights are not the rights of a person on a desert island. They are the
rights of a person as a part of society. Therefore they may be restricted in
order to uphold similar rights of other members of society. They may be
restricted in order to further proper social goals which will in turn
further human rights themselves. Indeed, human rights and the restriction
thereof derive from a common source, which concerns the right of a person in
16. The extent of the restriction on human rights as a result of the
forcible assignment of a person's residence from one place to another varies
in accordance with the reasons that underlie the assigned residence.
Assigned residence caused by combat activities (whether because of an
international dispute or because of a civil war) cannot be compared to
assigned residence caused by a disaster (whether natural or of human origin)
(see R. Cohen and F. M. Deng, Masses in Flight: the Global Crisis of
Internal Displacement, 1998). In the case before us, we are concerned with
the assigned residence of a person from his place of residence to another
place in the same territory for security reasons in an area subject to
belligerent occupation. The extent of the permitted restriction on human
rights is determined, therefore, by the humanitarian laws contained in the
laws concerning armed conflict (see D. Fleck ed., The Handbook of
Humanitarian Law in Armed Conflict, 1995). These laws are mainly enshrined
in the Fourth Hague Convention and the Fourth Geneva Convention. We will now
turn to these laws.
17. We were referred to various provisions in the Fourth Hague Convention
(mainly article 43) and in the Fourth Geneva Convention (mainly articles 49
and 78). In our opinion, the case before us is governed entirely by the
provisions of article 78 of the Fourth Geneva Convention:
If the Occupying Power considers it necessary, for imperative reasons of
security, to take safety measures concerning protected persons, it may, at
the most, subject them to assigned residence or to internment.
Decisions regarding such assigned residence or internment shall be made
according to a regular procedure to be prescribed by the Occupying Power in
accordance with the provisions of the present Convention. This procedure
shall include the right of appeal for the parties concerned. Appeals shall
be decided with the least possible delay. In the event of the decision being
upheld, it shall be subject to periodical review, if possible every six
months, by a competent body set up by the said Power.
Protected persons made subject to assigned residence and thus required to
leave their homes shall enjoy the full benefit of Article 39 of the present
This provision concerns assigned residence. It constitutes a special
provision of law (lex specialis) to which we must refer and on the basis of
which we must determine the legal problems before us. Whatever is prohibited
thereunder is forbidden even if a general provision may prima facie be
interpreted as allowing it, and what is permitted thereunder is allowed even
if a general provision may prima facie be interpreted as prohibiting it (see
J. Stone, No Place, No Law in the Middle East 1969, at p. 17). Indeed, a
study of the Amending Order itself and the individual orders made thereunder
shows that the maker of the Order took account of the provisions of article
78 of the Convention, and acted accordingly when he made the Amending Order
and the individual orders. The Respondent did not seek, therefore, to make a
forcible transfer or to deport any of the residents of the territory. The
Respondent acted within the framework of 'assigned residence' (according to
the provisions of article 78 of the Fourth Geneva Convention). Therefore we
did not see any reason to examine the scope of application of article 49 of
the Fourth Geneva Convention, which prohibits a forcible transfer or a
deportation. In any event, we see no need to consider the criticism that the
petitioners raised with regard to the ruling of this court, as reflected in
several decisions, the main one being HCJ 785/87 Abed El-Apu v. IDF
Commander in West Bank , with regard to the interpretation of article 49
of the Fourth Geneva Convention. We can leave this matter to be decided at a
18. Article 78 of the Fourth Geneva Convention does not deal with a forcible
transfer or deportation. It provides a comprehensive and full arrangement
with regard to all aspects of assigned residence and internment of protected
persons. This provision integrates with several other provisions in the
Fourth Geneva Convention (arts. 41, 42 and 43) that also discuss internment
and assigned residence. When the place of residence of a protected person is
assigned from one place to another under the provisions of art. 78 of the
Fourth Geneva Convention, it is a lawful act of the military commander, and
it does not constitute a violation of human rights protected by humanitarian
international law. Indeed, art. 78 of the Fourth Geneva Convention
constitutes both a source for the protection of the right of a person whose
residence is being assigned and also a source for the possibility of
restricting this right. This can be seen, inter alia, in the provisions of
art. 78 of the Fourth Geneva Convention that determines that the measures
stipulated therein are the measures that the occupying power (i.e., the
military commander) may 'at most' carry out.
The conditions for exercising the authority of the military commander with
regard to assigned residence
19. Article 78 of the Fourth Geneva Convention stipulates several (objective
and subjective) conditions with which the military commander must comply, if
he wishes to assign the place of residence of a person who is protected by
the Convention. We do not need, for the purposes of the petitions before us,
to consider all of these conditions. Thus, for example, art. 78 of the
Fourth Geneva Convention stipulates an objective condition that a regular
procedure for exercising the authority must be prescribed; this procedure
shall include a right of appeal; decisions regarding assigned residence
shall be subject to periodic review, if possible every six months. These
provisions were upheld in the case before us, and they are not the subject
of our consideration. We should add that under the provisions of art. 78 of
the Fourth Geneva Convention, someone whose place of residence was assigned
'shall enjoy the full benefit of article 39 of the present convention'. We
have been informed by counsel for the Respondent, in the course of oral
argument, that if in the circumstances of the case before us the Respondent
is subject to duties imposed under the provisions of art. 39 of the
Convention, he will fulfil these duties. Two main arguments were raised
before us with regard to the conditions stipulated in art. 78 of the Fourth
Geneva Convention. Let us consider these. The first argument raised before
us is that art. 78 of the Fourth Geneva Convention refers to assigned
residence within the territory subject to belligerent occupation. This
article does not apply when the assigned residence is in a place outside the
territory. The petitioners argue that assigning their residence from Judaea
and Samaria to the Gaza Strip is removing them from the territory.
Consequently, the precondition for the application of art. 78 of the Fourth
Geneva Convention does not apply. The petitioners further argue that in such
circumstances the provisions of art. 49 of the Fourth Geneva Convention
apply, according to which the deportation of the petitioners is prohibited.
The second argument raised before us concerns the factors that the military
commander may take into account in exercising his authority under the
provisions of art. 78. According to this argument, the military commander
may take into account considerations that concern the danger posed by the
resident and the prevention of that danger by assigning his place of
residence (preventative factors). The military commander may not take into
account considerations of deterring others (deterrent factors). Let us
consider each of these arguments.
Assigned residence within the territory subject to belligerent occupation
20. It is accepted by all concerned that art. 78 of the Fourth Geneva
Convention allows assigned residence, provided that the new place of
residence is in the territory subject to belligerent occupation that
contains the place of residence from which the person was removed. The
provisions of art. 78 of the Fourth Geneva Convention do not apply,
therefore, to the transfer of protected persons outside the territory held
under belligerent occupation. This is discussed by J. S. Pictet in his
commentary to the provisions of art. 78 of the Fourth Geneva Convention:
'. the protected persons concerned. can therefore only be interned, or
placed in assigned residence, within the frontiers of the occupied country
itself' (J. S. Pictet, Commentary: Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War, 1958, at p. 368).
It was argued before us that the Gaza Strip - to which the military
commander of Judaea and Samaria wishes to assign the place of residence of
the petitioners - is situated outside the territory.
21. This argument is interesting. According to it, Judaea and Samaria were
conquered from Jordan that annexed them - contrary to international law - to
the Hashemite Kingdom, and ruled them until the Six Day War. By contrast,
the Gaza Strip was conquered from Egypt, which held it until the Six Day War
without annexing the territory to Egypt. We therefore have two separate
areas subject to separate belligerent occupations by two different military
commanders in such a way that neither can make an order with regard to the
other territory. According to this argument, these two military commanders
act admittedly on behalf of one occupying power, but this does not make them
into one territory.
22. This argument must be rejected. The two areas are part of mandatory
Palestine. They are subject to a belligerent occupation by the State of
Israel. From a social and political viewpoint, the two areas are conceived
by all concerned as one territorial unit, and the legislation of the
military commander in them is identical in content. Thus, for example, our
attention was drawn by counsel for the Respondent to the provisions of
clause 11 of the Israeli-Palestinian Interim Agreement on the West Bank and
the Gaza Strip, which says:
'The two sides view the West Bank and the Gaza Strip as a single territorial
unit, the integrity and status of which shall be preserved during the
This provision is repeated also in clause 31(8) of the agreement, according
to which the 'safe passage' mechanisms between the area of Judaea and
Samaria and the area of the Gaza Strip were determined. Similarly, although
this agreement is not decisive on the issue under discussion, it does
indicate that the two areas are considered as one territory held by the
State of Israel under belligerent occupation. Moreover, counsel for the
Respondent pointed out to us that 'not only does the State of Israel
administer the two areas in a coordinated fashion, but the Palestinian side
also regards the two areas as one entity, and the leadership of these two
areas is a combined one'. Indeed, the purpose underlying the provisions of
art. 78 of the Fourth Geneva Convention and which restricts the validity of
assigned residence to one territory lies in the societal, linguistic,
cultural, social and political unity of the territory, out of a desire to
restrict the harm caused by assigning residence to a foreign place. In view
of this purpose, the area of Judaea and Samaria and the area of the Gaza
Strip should not be regarded as territories foreign to one another, but they
should be regarded as one territory. In this territory there are two
military commanders who act on behalf of a single occupying power.
Consequently, one military commander is competent to assign the place of
residence of a protected person outside his area, and the other military
commander is competent to agree to receive that protected person into the
area under his jurisdiction. The result is, therefore, that the provisions
of art. 78 of the Fourth Geneva Convention does apply in our case. Therefore
there is no reason to consider the provisions of art. 49 of that Convention.
The considerations of the area commander
23. The main question that arose in this case - and to which most of the
arguments were devoted - concerns the scope of the discretion that may be
exercised by the occupying power under the provisions of art. 78 of the
Fourth Geneva Convention. This discretion must be considered on two levels:
one level - which we shall consider immediately - concerns the factual
considerations that the military commander should take into account in
exercising his authority under the provisions of art. 78 of the Fourth
Geneva Convention. The other level - which we shall consider later -
concerns the applicability of the considerations that the military commander
must take into account to the circumstances of the cases of each of the
petitioners before us.
24. With regard to the first level, it is accepted by all the parties before
us - and this is also our opinion - that an essential condition for being
able to assign the place of residence of a person under art. 78 of the
Fourth Geneva Convention is that the person himself constitutes a danger,
and that assigning his place of residence will aid in averting that danger.
It follows that the basis for exercising the discretion for assigning
residence is the consideration of preventing a danger presented by a person
whose place of residence is being assigned. The place of residence of an
innocent person who does not himself present a danger may not be assigned,
merely because assigning his place of residence will deter others. Likewise,
one may not assign the place of residence of a person who is not innocent
and did carry out acts that harmed security, when in the circumstances of
the case he no longer presents any danger. Therefore, if someone carried out
terrorist acts, and assigning his residence will reduce the danger that he
presents, it is possible to assign his place of residence. One may not
assign the place of residence of an innocent family member who did not
collaborate with anyone, or of a family member who is not innocent but does
not present a danger to the area. This is the case even if assigning the
place of residence of a family member may deter other terrorists from
carrying out acts of terror. This conclusion is required by the outlook of
the Fourth Geneva Convention that regards the measures of internment and
assigned residence as the most severe and serious measures that an occupying
power may adopt against protected residents (see Pictet, ibid., at p. 257).
Therefore these measures may be adopted only in extreme and exceptional
cases. Pictet rightly says that:
'In occupied territories the internment of protected persons should be even
more exceptional than it is inside the territory of the Parties to the
conflict; for in the former case the question of nationality does not arise.
That is why Article 78 speaks of imperative reasons of security; there can
be no question of taking collective measures: each case must be decided
separately. their exceptional character must be preserved' (ibid., at pp.
He adds that it is permitted to adopt a measure of assigned residence only
towards persons whom the occupying power 'considers dangerous to its
security' (ibid., at p. 368). This approach - which derives from the
provisions of the Convention - was adopted by this court in the past. We
have held repeatedly that the measures of administrative internment - which
is the measure considered by art. 78 of the Fourth Geneva Convention
together with assigned residence - may be adopted only in the case of a
'danger presented by the acts of the petitioner to the security of the area'
(HCJ 7709/95 Sitrin v. IDF Commander in Judaea and Samaria ; see also HCJ
1361/91 Mesalem v. IDF Commander in Gaza Strip  at p. 456; HCJ 554/81
Beransa v. Central Commander  at p. 250). In one case Justice Bach said:
'The respondent may not use this sanction of making deportation orders
merely for the purpose of deterring others. Such an order is legitimate only
if the person making the order is convinced that the person designated for
deportation constitutes a danger to the security of the area, and that this
measure seems to him essential for the purpose of neutralizing this danger'
(HCJ 814/88 Nasralla v. IDF Commander in West Bank , at p. 271).
This conclusion is implied also by the construction of the Amending Order
itself, from which it can be seen that one may only adopt a measure of
assigned residence on account of a danger presented by the person himself.
But beyond all this, this conclusion is required by our Jewish and
democratic values. From our Jewish heritage we have learned that 'Fathers
shall not be put to death because of their sons, and sons shall not be put
to death because of their fathers; a person shall be put to death for his
own wrongdoing' (Deuteronomy 24, 16 ). 'Each person shall be liable for
his own crime and each person shall be put to death for his own wrongdoing'
(per Justice M. Cheshin in HCJ 2006/97 Janimat v. Central Commander , at
p. 654); 'each person shall be arrested for his own wrongdoing - and not for
the wrongdoing of others' (per Justice Y. T?rkel in CrimApp 4920/02 Federman
v. State of Israel ). The character of the State of Israel as a
democratic, freedom-seeking and liberty-seeking State implies that one may
not assign the place of residence of a person unless that person himself, by
his own deeds, constitutes a danger to the security of the State (cf. CrimFH
7048/97 A v. Minister of Defence , at p. 741). It should be noted that
the purpose of assigned residence is not penal. Its purpose is prevention.
It is not designed to punish the person whose place of residence is
assigned. It is designed to prevent him from continuing to constitute a
security danger. This was discussed by President Shamgar, who said:
'The authority is preventative, i.e., it is prospective and may not be
exercised unless it is necessary to prevent an anticipated danger. The
authority may not be exercised. unless the evidence brought before the
military commander indicates a danger that is anticipated from the
petitioner in the future, unless the measures designed to restrict his
activity and prevent a substantial part of the harm anticipated from him are
adopted' (Beransa v. Central Commander , at p. 249; see also Abu Satiha
v. IDF Commander ).
Of course, we are aware that assigning the residence of a person who
constitutes a danger to the security of the State is likely to harm his
family members who are innocent of any crime. That is not the purpose of
assigned residence, although it may be its consequence. This is inevitable,
if we wish to maintain the effectiveness of this measure (cf. Janimat v.
Central Commander , at p. 653).
25. What is the level of danger that justifies assigning a person's place
of residence, and what is the likelihood thereof? The answer is that any
degree of danger is insufficient. In view of the special nature of this
measure, it may usually only be exercised if there exists administrative
evidence that - even if inadmissible in a court of law - shows clearly and
convincingly that if the measure of assigned residence is not adopted, there
is a reasonable possibility that he will present a real danger of harm to
the security of the territory (see Pictet, at p. 258, and the examples given
by him, and also HCJ 159/94 Shahin v. IDF Commander in Gaza Strip ;
Sitrin v. IDF Commander in Judaea and Samaria ; HCJ 8259/96 Association
for Protection of Jewish Civil Rights v. IDF Commander in Judaea and Samaria
; HCJ 253/88 Sejadia v. Minister of Defence , at p. 821). Moreover,
just as with any other measure, the measure of assigned residence must be
exercised proportionately. 'There must be an objective relationship - a
proper relativity or proportionality - between the forbidden act of the
individual and the measures adopted by the Government' (HCJ 5667/91 Jabrin
v. IDF Commander in Judaea and Samaria , at p. 860; see also HCJ 5510/92
Turkeman v. Minister of Defence , at p. 219). An appropriate
relationship must exist between the purpose of preventing danger from the
person whose place of residence is being assigned and the danger that he
would present if this measure were not exercised against him (see HCJ
1730/96 Sabiah v. IDF Commander in Judaea and Samaria , 364); the
measure adopted must be the one that causes less harm; and it is usually
necessary that the measure of assigned residence is proportionate to the
benefit deriving from it in ensuring the security of the territory (cf. HCJ
3477/95 Ben-Atiya v. Minister of Education, Culture and Sport ; HCJ
3643/97 Stamka v. Minister of Interior ; HCJ 4644/00 Jaffora Tavori v.
Second Television and Radio Authority ; HCJ 4915/00 Communications and
Productions Co. Network (1988) v. Government of Israel IsrSC 54(5) 451 ;
HCJ 1030/99 Oron v. Knesset Speaker (not yet reported) ).
26. Within the framework of proportionality we should consider two further
matters that were discussed by President Shamgar in a case that concerned
the administrative internment of residents from Judaea and Samaria, where he
'The internment is designed to prevent and frustrate a security danger that
arises from the acts that the internee may perpetrate and which may not
reasonably be prevented by adopting regular legal measures (a criminal
proceeding) or by an administrative measure that is less severe from the
viewpoint of its consequences (for the purpose of reaching conclusions from
past acts with regard to future danger)' (Sejadia v. Minister of Defence
, at p. 821).
These remarks are also relevant to the issue of assigned residence.
Therefore each case must be examined to see whether filing a criminal
indictment will not prevent the danger that the assigned residence is
designed to prevent. Moreover, the measure of assigned residence - as
discussed in art. 78 of the Fourth Geneva Convention - is generally a less
serious measure than the measure of internment. This matter must be
considered in each case on its merits, in the spirit of Pictet's remarks
'Internment is the more severe. as it generally implies an obligation to
live in a camp with other internees. It must not be forgotten, however, that
the terms "assigned residence" and "internment" may be differently
interpreted in the law of different countries. As a general rule, assigned
residence is a less serious measure than internment' (ibid., at p. 256).
27. May the military commander, when making a decision about assigned
residence, take into account considerations of deterring others? As we have
seen, what underlies the measure of assigned residence is the danger
presented by the person himself if his place of residence is not assigned,
and deterring that person himself by assigning his place of residence. The
military commander may not, therefore, adopt a measure of assigned residence
merely as a deterrent to others. Notwithstanding, when assigning a place of
residence is justified because a person is dangerous, and the question is
merely whether to exercise this authority, there is no defect in the
military commander taking into account considerations of deterring others.
Thus, for example, this consideration may be taken into account in choosing
between internment and assigned residence. This approach strikes a proper
balance between the essential condition that the person himself presents a
danger - which assigned residence is designed to prevent - and the essential
need to protect the security of the territory. It is entirely consistent
with the approach of the Fourth Geneva Convention, which regards assigned
residence as a legitimate mechanism for protecting the security of the
territory. It 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.
28. Before we conclude the examination in principle as to the conditions
prescribed by art. 78 of the Fourth Geneva Convention, we ought to point out
once again that the occupying power may make use of the measure of assigned
residence if it 'considers it necessary, for imperative reasons of security'
. A similar test appears in the Amending Order - which, without doubt,
sought to comply with the requirements of the Fourth Geneva Convention and
the Fourth Hague Convention - according to which the military commander may
adopt the measure of assigned residence 'if he is of the opinion that it is
essential for decisive security reasons' (s. 84A of the Amending Order).
These provisions give the military commander broad discretion. He must
decide whether decisive security reasons - or imperative reasons of
security - justify assigned residence. In discussing this, Pictet said:
'It did not seem possible to define the expression "security of the State"
in a more concrete fashion. It is thus left very largely to Governments to
decide the measure of activity prejudicial to the internal or external
security of the State which justifies internment or assigned residence'
(ibid., at p. 257).
Note that the considerations that the military commander may take into
account are not merely 'military' reasons (see, for example, arts. 5, 16,
18, 53, 55, 83 and 143 of the Fourth Geneva Convention). Article 78 of the
Fourth Geneva Convention extends the kind of reasons to 'reasons of security
' (see, for example, arts. 9, 42, 62, 63, 64 and 74 of the Fourth Geneva
Convention). Indeed, the Fourth Geneva Convention clearly distinguishes
between 'imperative reasons of security' and 'imperative military reasons'.
The concept of reasons of security is broader than the concept of military
29. The discretion of the military commander to order assigned residence is
broad. But it is not absolute discretion. The military commander must
exercise his discretion within the framework of the conditions that we have
established in this judgment and as prescribed in art. 78 of the Fourth
Geneva Convention and the Amending Order. The military commander may not,
for example, order assigned residence for an innocent person who is not invo
lved in any activity that harms the security of the State and who does not
present any danger, even if the military commander is of the opinion that
this is essential for decisive reasons of security. He also may not do so
for a person involved in activity that harms the security of the State, if
that person no longer presents any danger that assigned residence is
designed to prevent. Indeed, the military commander who wishes to make use
of the provisions of art. 78 of the Fourth Geneva Convention must act within
the framework of the parameters set out in that article. These parameters
create a 'zone' of situations - a kind of 'zone of reasonableness' - within
which the military commander may act. He may not deviate from them.
30. The Supreme Court, when sitting as the High Court of Justice, exercises
judicial review over the legality of the discretion exercised by the
military commander. In doing so, the premise guiding this court is that the
military commander and those carrying out his orders are public officials
carrying out a public office according to law (Almashulia v. IDF Commander
in Judaea and Samaria , at p. 809). In exercising this judicial review,
we do not appoint ourselves as experts in security matters. We do not
replace the security considerations of the military commander with our own
security considerations. We do not adopt any position with regard to the
manner in which security matters are conducted (cf. HCJ 3114/02 Barake v.
Minister of Defence , at p. 16). Our role is to ensure that boundaries
are not crossed and that the conditions that restrict the discretion of the
military commander are upheld (see HCJ 680/88 Schnitzer v. Chief Military
Censor IsrSC 42(4) 617 , at p. 640). This was well expressed by Justice
Shamgar in one case that considered the extent of judicial review of the
considerations of the military commander in Judaea and Samaria:
'The respondents' exercising of their powers will be examined according to
criteria applied by this court when it exercises judicial review of an act
or omission of any other branch of the executive, but this of course while
taking into account the duties of the respondents as required by the nature
of their function' (HCJ 619/78 'Altaliya' Weekly v. Minister of Defence
, at p. 512).
Admittedly, 'security of the State' is not a 'magic word' that prevents
judicial review (see the remarks of Justice Strasberg-Cohen in HCJ 4541/94
Miller v. Minister of Defence , at p. 124). Nonetheless, 'an act of
State and an act of war do not change their nature even if they are subject
to judicial review, and the character of the acts, in the nature of things
sets its seal on the means of intervention' (per Justice M. Cheshin in
Sabiah v. IDF Commander in Judaea and Samaria , at p. 369). Therefore we
will not be deterred from exercising review of the decisions of the military
commander under art. 78 of the Fourth Geneva Convention and the Amending
Order merely because of the important security aspects on which the
commander's decision is based. Notwithstanding, we will not replace the
discretion of the military commander with our discretion. We will consider
the legality of the military commander's discretion and whether his
decisions fall into the 'zone of reasonableness' determined by the relevant
legal norms that apply to the case. This was discussed - in the context of
exercising r. 119 of the Defence (Emergency) Regulations, 1945, in the Gaza
Strip - by President Shamgar, who said:
'But it should be understood that the court does not put itself in the shoes
of the military authority making the decision. in order to replace the
discretion of the commander with the discretion of the court. It considers
the question whether, in view of all the facts, the use of the said measure
lies within the scope of the measures that may be regarded, in the
circumstances of the case, as reasonable, taking into account the acts of
those involved in the activity that harms the security of the area whose
case is being considered by the court' (HCJ 1005/89 Agga v. IDF Commander in
Gaza Strip , at p. 539).
Thus, for example, we are not prepared to intervene in the decision of the
Respondent that assigned residence constitutes an important mechanism for
ensuring security in the territory. In this matter the petitioners argued
before us that this measure is ineffective. This argument was considered in
detail by the Appeals Boards, and they rejected it. Before us the Respondent
presented the general picture in its entirety, and he gave examples of cases
in which serious terrorist activity was prevented by taking account of
considerations such as that of assigned residence. In such circumstances, we
will not replace the discretion of the Respondent with our own discretion
(see HCJ 24/91 Rahman v. IDF Commander in Gaza Strip , at p. 335;
Janimat v. Central Commander , at p. 655). Against this background, we
will now turn to consider the specific cases that are before us. The
Respondent assigned the place of residence of the three petitioners before
us. Let us therefore consider the case of each petitioner.
From the general to the specific
Amtassar Muhammed Ahmed Ajuri (HCJ 7019/02)
31. Amtassar Muhammed Ahmed Ajuri (an unmarried woman aged 34) is the sister
of the terrorist Ahmed Ali Ajuri. Much terrorist activity is attributed to
the brother, Ahmed Ali Ajuri, including sending suicide bombers with
explosive belts, and responsibility, inter alia, for the terrorist attack at
the Central Bus Station in Tel-Aviv in which five people were killed and
many others were injured. The Appeals Board (chaired by Col. Gordon), in its
decision of 12 August 2002, held - on the basis of privileged material
presented to it and on the basis of testimonies of members of the General
Security Service - that the petitioner directly and substantially aided the
unlawful activity of her brother, which was intended to harm innocent
citizens. The Board determined that there was more than a basis for the
conclusion that the petitioner knew about the forbidden activity of her
brother - including his being wanted by the Israeli security forces - and
that she knew that her brother was wounded when he was engaged in preparing
explosives, and prima facie she also knew that her brother was armed and had
hidden in the family apartment an assault rifle. It was also held that the
petitioner aided her brother by sewing an explosive belt. The Board pointed
out that, on the basis of privileged evidence, which it found 'reliable and
up-to-date', it transpired that the petitioner indeed aided her brother in
his unlawful activity. It held that this was a case of 'direct and material
aid in the preparation of an explosive belt, and the grave significance and
implications of this aid were without doubt clear and known [to the
petitioner]'. Admittedly, the petitioner testified before the Board that she
was not involved in anything and did not aid her brother, but the Board
rejected this testimony as unreliable. It pointed out that 'we found her
disingenuous and evasive story totally unreasonable throughout her testimony
before us, and it was clear that she wished to distance herself in any way
possible from the activity of her brother. her disingenuous story left us
with a clear impression of someone who has something to hide and this
impression combines with the clear and unambiguous information that arises
from the privileged material about her involvement in preparing an explosive
belt.' For these reasons, the appeal of the petitioner to the Appeals Board
was denied. It should also be pointed out that in the Respondent's reply in
the proceeding before us - which was supported by an affidavit - it was
stated that 'the petitioner aided her brother in the terrorist activity and,
inter alia, sewed for his purposes explosive belts' - explosive belts, and
not merely one explosive belt.