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