Case Number

HCJ 10223/02

Date Decided

4-9-2003

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.]

During the IDF’s activity against terror infrastructure within the territories of the Palestinian Authority (“Defensive Shield” operation), armed Palestinians broke into the premises of the Church of the Nativity in Beth Lehem and locked down in the church basilica. Among them were wanted persons connected to a shooting terrorist act in which the husbands of the two petitioners were killed. During their time holding down the church an intensive negotiation was held in order to come to a peaceful resolution that would allow the exit of civilians and clergy men from the premises as well as the exit of the wanted men without forceful entry into the church, because of the international and religious implications of such forced entry. An agreement was ultimately reached with international assistance and mediation, whereby the wanted persons would exit the premises unarmed. Some of them would be transported to Gaza and some would be transported to foreign countries without being arrested by Israel. The Petitioners claim that despite the agreement to release the wanted persons the State was obligated to seek their extradition after they were transported to the foreign countries that had agreed to accept them.

The Supreme Court held:

  1. The Petitioners do not effectively argue against the validity of the agreement – which already withstood judicial review in the High Court of Justice – but against the failure to initiate extradition proceedings against the wanted persons, however these things are linked. The decision regarding the exit of the people who took control of the church, along with the wanted persons, is essentially a decision not to prosecute them, and in any event not to see their extradition. This was a decision that was agreed to with the assistance of all the international bodies that participated in reaching the agreement.
  2. Under these circumstances there is no place for the High Court’s intervention in the Respondent’s decision not to initiate extradition proceedings against the wanted persons.

Keywords

International Law -- Laws of war

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