Case Number

HCJ 4466/16

Date Decided

12-14-2017

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The debate revolved around whether reg. 133(3) of Defence (Emergency) Regulations, 1945 (hereinafter: the Defence Regulations) authorize the Military Commander to order temporary burial of terrorists' bodies to be held for negotiation purposes. The background for this debate was a decision by the Israeli government's Ministerial Committee on National Security Affairs (the State Security Cabinet) in the matter, establishing a general policy, while implementation of the policy was delegated to the Military Commander under reg. 133(3) of the Defence Regulations.

The High Court of Justice (per Justice Danziger with Justice Kara concurring, contrary to the dissenting opinion of Justice Hendel), accepted the petitions, holding:

The High Court of Justice first addressed the relationship between the Cabinet's decision and the authority of the Military Commander, as well as the requirement for a specific source of authority for the Military Commander's action. The Court held that since the decision of the State Security Cabinet was established as a matter of general policy, but the Military Commander was the one charged with its execution and implementation under the authority granted him by law, it was necessary to examine whether the law included any provision authorizing the Military Commander to implement and execute the Cabinet's policy. Moreover, if an enabling provision of law did exist, further examination would be required to ascertain whether it was anchored in explicit,specific primary legislation, inasmuch as the actions that the Military Commander wishes to carry out violate human rights.

The High Court of Justice held that reg. 133(3) of the Defence Regulations does not constitute explicit, specific primary legislation for the Military Commander's action ordering the temporary burial of terrorists' bodies to be held for negotiation purposes. This conclusion is required by virtue of the principle of the rule of law and the principle of administrative legality. It follows from interpretative analysis of the regulation's language, which shows it to be a broad, general regulation that cannot qualify as explicit, specific legislation. It also derives from the purpose of the regulation, which comprises its historic context, its inner and external logic, and the application of the rules of interpretation practiced in the Israeli legal system. The Mandatory legislator, followed by the Israeli legislature, never envisioned a situation involving the temporary holding of terrorists' corpses for negotiation purposes, and did not seek to create a unique arrangement in order to grant authority to that effect. The conclusion regarding the authority is further bolstered when juxtaposed with rulings in similar contexts involving terrorists' bodies and live detainees held as "bargaining chips", as well as with international humanitarian law treating of the laws of armed conflict, and international human rights law. While the reciprocity argument—the fact that the Hamas organization is holding Israeli captives and missing persons—could possibly serve as moral justification for reciprocal action, it is no substitute for the obligation to act on the basis of authority established by Law.

In view of the holding that reg. 133(3) of the Defence Regulations, as a general and non-explicit provision of law, does not grant the Military Commander authority to hold terrorists' bodies for negotiation purposes by way of temporary burial or any other way, the Military Commander is not permitted to use his authority by virtue of the regulation in order to hold terrorists' bodies for negotiation purposes. Therefore, the burial orders that are the subject of the petitions were unlawfully issued by the Military Commander. A possible remedy is to declare the burial orders void, which would mean the immediate return of the terrorists' bodies to their families. However, considering the entirety of rights and interests at stake, and if the State so wishes, it should be given a chance to formulate a full, complete legislative arrangement, in the form of explicit, specific primary legislation—meeting the pertinent legal standards—dedicated and unique to the issue of holding corpses for the sought-after purposes. In light of the above, the remedy ordered should be a suspended declaration of voidness, giving the State time to formulate a full legislative arrangement within six months of the date of rendering this judgment. Should the state fail to formulate an arrangement by this time, the bodies of the terrorists whose matter is the subject of the petitions shall be returned to their families.

Editor’s note: Following the above judgment, the Government requested and was granted a further hearing before an expanded panel (HCJFH 10190/17). The Court (per President Hayut, Justices Hendel, Amit and Sohlberg concurring, Justices Vogelman, Barak-Erez, and Karra dissenting) overturned the judgment in HCJ 4466/16, holding that “Regulation 133 (3) of the Defence (Emergency) Regulations authorizes the Military Commander to order the temporary burial of the corpses of terrorists or fallen enemy soldiers for reasons of national security or public safety, while ensuring the dignity of the deceased and his family, for the purposes of negotiations for the return of IDF soldiers, fallen soldiers, and Israeli citizens held by terrorist organizations”.

Keywords

Constitutional Law -- State of Emergency and National Security, International Law -- Detention of prisoners, International Law -- Laws of war, International Law -- International Humanitarian Law

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