¹ Indeed, in a recent Case Note published in the United States, the author opines that “One admires the meticulous and courageous way in which the Israeli Supreme Court…approached the task of distinguishing between appropriate and inappropriate uses of the executive's security powers. One wonders whether if security problems in the United States were to reach the same level of intensity, American courts will do as well.” See Vagas, Detlev F., “International Decision: Ajuri v. IDF Commander in West Bank,” (2003) 97 A.J.I.L 173Google Scholar. The author goes further to discuss how the U.S. administration is reluctant to having civilian courts review the correctness of military determinations that some U.S. citizens, held in Guantanamo Bay, have been unlawful combatants and may be detained as such.

² For this view, see in general, among others, Kretzmer, David, The Occupation of Justice: the Supreme Court of Israel and the Occupied Territories (Albany, State University of New York Press, 2002)Google Scholar; Kretzmer, David, “The Enforcement and Interpretation of the Fourth Geneva Convention – the Supreme Court's Way,” (1995) 26 Mishpatim 49 [Hebrew]Google Scholar. Shamir, Ronen, “Landmark Cases and the Reproduction of Legitimacy – The Case of Israel's High Court of Justice,” (1990) 24 Law and Society Review 781 [Hebrew]CrossRefGoogle Scholar.

³ See Israel – the “Intifada” and the Rule of Law (Jerusalem, Israel Ministry of Defense Publications, 1993)Google Scholar.

⁴ The Interim Agreement led to Israeli Defense Forces (IDF) redeployment from the major cities and other populated areas in the West Bank. See Israel-Palestine Liberation Organization, Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995, (1997) 36 International Legal Materials 551 (hereinafter: the Interim Agreement).

⁵ The Israeli government's sub-committee for national security affairs.

⁶ It should be noted, that the sovereign power in the parts of the West Bank held under Israeli Belligerent Occupation is the MC, according to Proclamation no. 2 given on 7 June 1967 by the MC at the time, Major General Haim Herzog. As the sovereign, the Orders signed by the MC, such as the Original Order, are considered primary legislation in the West Bank.

⁷ Section 86(a) of the Original Order.

⁸ Two of the orders were given on the same day for Kipah and Antassar Ajuri, the brother and sister of Ali Ajuri. Three days later, the third assigned residence order was given for Aber Asida, the brother of Nasser Asida.

⁹ See page 3 of the First Petition [Filed in Hebrew].

¹⁰ See pages 7–10 of the respondents' brief in the Assigned Residence Case [Filed in Hebrew].

¹¹ See the Assigned Residence Case, page 11 of the English translation.

A note should be made, that while there exists no particular legal source for the Supreme Court's authority to review the actions of the Israeli administrative bodies in the Occupied Territories, the court has been petitioned numerous times since the Israeli occupation began in 1967, and the respondents have never claimed that this review is made without authority and thus is invalid. Nevertheless, in the Assigned Residence Case, Chief Justice Aharon Barak noted, that “every Israeli soldier carries in his bag both the principles of International Law and the principles of Israeli Administrative Law.”

¹² See H.C. 393/82 Almashulia v. IDF Commander in Judea and Samaria, 37 (4) P.D. 785, at 793.

¹³ Signed on 12 August 1949. 6 UTS 3516, 75 UNTS 287.

¹⁴ See page 9 of the Second Petition. The petitioners further noted, that Justice Dalia Dorner, in H.C. 7084/97 Plonim v. The Minister of Defense, 54 (1) P.D. 721, at 724 mentioned that “some claim that the clauses in the Geneva convention quoted in article 146 thereof have reached a status of customary international law” (my translation – R.Z.).Chief Justice Barak had decided then to leave the issue “to be examined” (a technique often used in Israeli Supreme Court decisions in order to avoid making controversial decisions when the case can be called without such decisions).

¹⁵ See Shamgar, Meir, “The Observance of International Law in the Administered Territories,” (1971) 1 Isr. Y.H.R. 262Google Scholar.

¹⁶ The Assigned Residence Case, page 12 to the English translation.

¹⁷ See, among others, H.C. 698/80 Kawasma v. The Minister of Defense, 35 (1) P.D. 617; H.C. 5978/97 Association for Civil Rights in Israel v. The Minister of Defense, 47(1) P.D. 267.

¹⁸ An exception may be the Affu decision, dealing with deportation, where Former Chief Justice Meir Shamgar discussed in length the Fourth Geneva Convention, establishing that it is not enforceable in court. See H.C. 845/87 Affu v. The Military Commander, 42 (2) P.D. 4.

¹⁹ A recent paper in Israel, examining the Assigned Residence Case, attributed the above-mentioned change in the Court's attitude to recent developments in the international sphere, concerning growing awareness of human rights violations occurring in the course of international and internal conflicts. See Naftali, Orna Ben, and Keren, Michalei, “Parashat Leh-Leha: Bein Adam Lamakom,” (2003) 9 Hamishpat 56 [Hebrew] (hereinafter: Hamishpat paper)Google Scholar. One should also note, that whilst the Assigned Residence Case is indeed the first in which the HCJ discusses at length the legal implication of clauses of the Fourth Geneva Convention, in two previous cases during the recent Israeli-Palestinian conflict the HCJ ruled that “We find it appropriate to emphasize that our armed forces are committed to abiding by the humanitarian rules as to treating the wounded, the sick and the deceased” (my translation – R.Z.). In the first of these petitions, the 19^th and 21^st clauses of the First Geneva Convention were briefly examined by the Court. See H.C. 2117/02 Physicians for Human Rights v. The Military Commander (not yet published); H.C. 2936/02 Physicians for Human Rights v. The Military Commander, 56 (3) P.D. 3. Interestingly enough, the petitioners in their briefs (page 11) referred the HCJ to internal order no. 33.0133 of the IDF, ordering IDF soldiers to act in accordance with the clauses of the four Geneva conventions. A breach of the conventions' clauses, they claimed, is a violation of IDF orders and therefore invalid.

²⁰ See pages 34 to 42 of the Second Petition.

²¹ See page 14 of the respondents' brief in the Assigned Residence Case.

²² See paragraph 21 of the decision in the Assigned Residence Case.

²³ References are made in the decision to a number of previous HCJ rulings, mainly concerning administrative internment. See, for example, H.C. 814/88 Nasralla v. IDF Commander in the West Bank 43 (2) P.D. 265, at 271.

Interestingly enough, however, while the respondents did assert that the amending orders were given due to a combined need – of both prevention and deterrence, the Appeals Board in the case of Kipah Ajuri and Aber Asida headed by Colonel Daniel Friedman (hereinafter: the Friedman Appeals Board decision), went further into practically legitimizing the sole use of deterrence as a criterion for assigning residences. See paragraph 19 of the Boards' ruling, noting that “House demolitions or their sealing is one of the measures used by the IDF in its harsh war of terror. The IDF takes now another measure, the objective of which is also to deter potential suicide bombers and to lead them to refrain from committing hostile acts, knowing that their family members will be harmed” (my translation – R.Z.).

The other Board, in the case of Antassar Ajuri, headed by Colonel Shaul Gordon, quoted the HCJ's decision in H.C. 7048/97 Plonim v. The Minister of Defense 54 (1) P.D. 721, at 724, where the court established that “Holding a person in administrative arrest when he does not pose a danger to the security of the state is so harsh that the interpreter cannot assume that the law intended to provide for such harm” (my translation – R.Z.) [This case is often referred to in Israel as the “bargaining cards” case, where Israel had interned 19 Hizbullah members hoping that this internment will eventually lead to the release of Israeli POWs captured in Lebanon during the 1980s].

²⁴ See the Assigned Residence Case, page 19 of the English translation.

²⁵ Ibid., at 20.

²⁶ The HCJ does so whenever it judicially reviews an administrative decision. Later in the decision, the main question the Chief Justice poses is whether the acts of the MC fall within “the zone of reasonableness,” a term often used in Israeli administrative law.

²⁷ See Pictet, Jean S., Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons In Time of War (Geneva, International Committee of the Red Cross, 1958) 256Google Scholar.

²⁸ A measure used rather frequently by the IDF since mid 2002.

²⁹ See page 29 of the Second Petition.

³⁰ The use of measures amounting to collective punishment is forbidden under Articles 50 and 33 of the Fourth Hague and Geneva conventions, respectively.

³¹ See page 18 of the respondents' brief in the Assigned Residence Case.

³² See the Assigned Residence Case, at page 24 of the English translation. These acts must fall into “the zone of reasonableness” determined by the relevant legal norms that apply to the case. While this “mental note” can be found in almost every recent HCJ decision reviewing administrative acts, in The Assigned Residence Case it derives from the petitioners' claims as to the (in)-effectiveness of assigned residences, presumably based on experts' opinions (See pages 31–33 of the Second Petition). The Court clearly states, at page 25, that “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.”

³³ The petitioner in the Second Petition.

³⁴ The first petitioner in the First Petition.

³⁵ The second petitioner in the First Petition.

³⁶ See page 14 of the Friedman Appeals Board decision, supra n. 22.

³⁷ Quoting H.C. 2630/90 Sarachra v. IDF Commander in Judea and Samaria (unreported).

³⁸ See the Assigned Residence Case, at pages 1–2 of the English translation.

³⁹ Whereas 354 children and minors (under 18), according to the “Btselem” Human Rights NGO, most of whom were not involved in terrorist activities of any sort, that have been killed thus far remain in the decision an unaccounted for figure. See the full figures at Btselem site at: www.btselem.org (statistics).

⁴⁰ See the Assigned Residence Case, at page 22 of the English translation.

⁴¹ Ibid., at 31.

⁴² Hamishpat paper, supra n. 19. For an earlier critical commentary on the HCJ's inclination to interpret the Fourth Geneva Convention in a way that provides wide discretion for the executive, see Kretzmer, supra n. 2, at 94.