1 (1992) S.H. no. 1391, p. 150.

2 Chaya Kaufmann v. Minister of Interior (1953) P.D. 534, at 536 (hereinafter: Kaufmann); Dahar v. Minister of Interior (1985) 40(ii) P.D. 701, at 712 (hereinafter: Dahar).

The two cases cited above, Kaufmann and Dahar, dealt with the scope of the restriction of the right to leave the country on security grounds under reg. 6 of Emergency (Foreign Travel) Regulations 1948. In these cases the Justices explicitly upheld the existence of the right to leave Israel before referring to the section in the statute restricting that right. In other cases, where the right to leave Israel was considered in other contexts, the Court examined the restriction on departure on the assumption that a basic right to leave the country existed, without explicitly holding that such a right existed, e.g., in Haim Aharon Assiag v. Minister of Defence and others (1957) 12(i) P.D. 52, at 55 the Court held “the judgment of the respondent is faulty insofar as owing to his error he did not take into account the right of the petitioner to leave the country which was his inherent right when the application first came up for consideration before the authorities”. See also Baransi v. Director of Permits Dept., Ministry of Interior, (1983) 37(iii) P.D. 722; Badir v. Tov (1985) 39(iii) P.D. 54.

3 See Article 13(2) of the UN Universal Declaration of Human Rights (1948), Article 12(2) of the International Covenant on Civil & Political Rights, Article 2(2) of the Fourth Protocol to the European Convention on Human Rights, Article 22(2) of the American Declaration of Rights & Duties of Man, in Brownlie, Ian, Basic Documents on Human Rights (Oxford, 1992) 24, 129, 346, 504Google Scholar, (hereinafter: Brownlie), and Article 12(2) of the African Charter on Human Rights and the Rights of Peoples in Hannum, H., The Right to Leave & to Return in International Law & Practice, (Dordrecht, 1987) 10Google Scholar, (hereinafter: Hannum).

4 See section 8 of Basic Law: Human Dignity & Freedom, supra n. 1. For an explanation of that section and its consitutional importance, see Barak, A., Interpretation in Law, Vol. III: Constitutional Interpretation (Jerusalem, 1994, in Hebrew) 465–558Google Scholar.

5 101 S.Ct. 2766, 2782 (1981).

6 Art. 29(2) of Universal Declaration, Brownlie, supra n. 3, at 26-27; Art. 12(3) of the Convention on Civil & Political Rights, Brownlie, at 129-30; Art. 4(2) of 4th Protocol to European Convention on Human Rights, Brownlie, at 346-347; Art. 22(3) of American Convention on Human Rights, Brownlie, at 504.

7 Supra n. 6.

8 Kiss, Alexander Charles, “Permissible Limitations on Rights”, in Henkin, L., ed., The International Bill of Rights, The Covenant in Civil & Political Rights (1981) 290Google Scholar.

9 Kiss, supra n. 8, at 296. See sec. 51(1) and sec. 1(3) of UN Charter.

10 See Article 2(4) to the U.N. Charter.

11 Supra n. 8, at 296.

12 Hannum, supra n. 3, at 28; Barist, J., “Who May Leave” (1987) 15 Hofstra L.R. 381, at 403Google Scholar.

13 Kiss, supra n. 8, at 297; Hannum, supra n. 3, at 28. Chipoya, M., Analysis of the Current Trends & Developments Regarding the Right to Leave any Country Including One's Own & to Return to One's Country, UN Doc. E/CN.4/Sub.2/1988/ 35 (1988) Sec. 258 at 52Google Scholar.

14 Ingles, Jose Special Reporteur: Study of Discrimination in Respect of the Right of Everyone to Leave any Country Including His Own, and to Return to His Country, U.N. Sales No. 64 XIV 2, UN Doc. E/CN/4 Sub. 2/220/Rev. I (1963) at 45Google Scholar. Chipoya Report, supra n. 13, sec. 258 at 53; Kiss, supra n. 8, at 297; S. Jagerskiold, “The Freedom of Movement” in Henkin, supra n. 8, at 178 (hereinafter: Jagerskiold); Barist, supra n. 12, at 403; Hannum, supra n. 3, at 28.

15 15 L.S.I. 179. Before the amendment of the statute in 1961, departure from the country was restricted on security grounds by the Emergency (Foreign Travel) Regulation 1948. Reg. 1 of the 1948 Regulations provided that: “No person shall leave for abroad except by virtue of an exit permit from the Minister of Immigration or from a person appointed by him to issue such a permit”, and in reg. 2 it was stated that “the Minister of Immigration or the person appointed on his behalf to issue exit permits may issue such permit or refuse to issue it”. Official Gazette No. 33 Supp. A (1948) at 46. The 1948 formulation was altered in 1955 and reworded as follows: “the Minister of the Interior … may refuse to grant a permit if there is a basis for the apprehension that the departure for abroad of the applicant for a permit may prejudice state security”. Emergency Regulations (Foreign Travel) (Amendment) Law, 1955 (9 L.S.I. 105).

The statute of 1961 replaced the previous regs. 1 and 3 of the Emergency (Foreign Travel) Regulations, thus rescinding the requirements of obaining an exit permit from the Minister of the Interior to leave the country. In view of this change reg. 2(a) which provided that an exit permit will not be issued if the Minister suspects that the departure will prejudice state security, no longer applied, since the need for an exit permit was completely rescinded. Reg. 2(a) of 1955 was merged in reg. 6 of 1961 and formulated so as to fit the new situation after the abolition of exit permits.

16 Supra n. 15.

17 6 L.S.I. 76.

18 Kaufmann, supra n. 2.

19 Dahar, supra n. 2.

20 Supra n. 15.

21 Ibid.

22 Kaufmann, supra n. 2.

23 Ibid., at 536.

24 Ibid., at 541.

25 Supra n. 2.

26 Supra n. 15.

27 Ibid.

28 Dahar, supra n. 2, at 705.

29 We shall quote exactly from the dicta of Ben-Porat, J. in Dahar, supra n. 2, at 710: “If the respondent were of the opinion, on the basis of the disclosed material, that there was a genuine apprehension for state security, I would be inclined not to intervene. However, I have no need to take up a definite position on this issue, since we have been requested by the learned attorney of the petitioners to look at the privileged material, to form an impression of its content and to decide whether to disclose it to them. As far as I am concerned, it is sufficient that that material does not assist the petitioner's case”.

30 Dahar, supra n. 2, at 717-9.

31 Ibid., at 720.

32 Ibid., at 708-9, 719.

33 Ibid., at 715-7.

34 Barak, Avner, “The Criterion of Near Certainty in Constitutional Law” (1989) 14 Iyunei Mishpat 371, at 379Google Scholar.

35 Avner Barak, ibid., at 380. See also Alan Levy v. Commander of the Southern District of the Israeli Police (1984) 38(ii) P.D. 393; Laor v. Films & Plays Censorship Board (1987) 41(i) P.D. 421, at 434.

36 Avner Barak, supra n. 34, at 396-8, expresses doubt whether the Justices in Dahar really intended to depart from the test of “near certainty” so as to fix a lower degree of probability for balancing between the right of departure and state security. In his opinion, in the balance between the right to leave and state security, the probability of near certainty should also be adopted. In our opinion, in view of the citations below, the Justices in Dahar intended to depart from the “near certainty” test in favour of the less strict test which they term “a real fear”. Re their decision we shall go into greater detail below.

37 Dahar, supra n. 2, at 709, 714-5.

38 Ibid., at 714-5.

46 Ibid. (emphasis added).

47 Ingles Report, supra n. 14, at 42, 59-60.

48 Dahar, supra n. 2, at 709.

49 Ibid., at 709, 714-715.

50 Henkin, Louis “International Human Rights as Rights in the U.S.” in Meron, Theodore, Human Rights in International Law (1984) 25 at 31, 40Google Scholar.

51 Article of Confederation sec. IV, Rotunda, supra, n. 43, Vol. 3, App. B. at 530.

52 Rotunda, supra n. 43, Vol. 2, at 680, U.S. v. Guest 86 S.Ct. 1170, 1178 (1966).

53 Rotunda, supra n. 43, Vol. 2, at 680-1.

54 Corfield v. Coryell, 6 Fed. Cas. 546 (1825); The Passanger Cases 48 U.S. (17 How.) 702 (1849); Crandall v. Nevada 73 U.S. (6 Wall.) 745 (1867); Paul v. Virginia 75 U.S. (8 Wall.) 357 (1869); Ward v. Maryland 79 U.S. (12 Wall.) 449 (1871); Slaughter House Cases 83 U.S. (16 Wall.) 395 (1873).

55 Majority opinion of Miller, J. in Crandall v. Nevada, supra n. 54, at 747. Minority opinion of Taney, J. in Passanger Cases, supra n. 54, at 292.

56 Minority opinion of Clifford, J. in Crandall v. Nevada, supra n. 54, at 790. Majority opinion in Edwars v. California 62 S.Ct. 164, 165-168 (1941).

57 As, for example, in: Corfield v. Coryell, supra n. 54, at 552; Paul v. Virginia, supra n. 54, at 360; Ward v. Maryland, supra n. 54.

58 Majority opinion in Shapiro v. Thompson 89 S.Ct. 1322, 1330 (1969). Harlen, J. in a minority opinion, at p. 1351, expressed the view that the right should be based on the Fifth Amendment of the Constitution which provides that freedoms shall not be denied without due process of law.

59 106 S.Ct. 2317 (1986).

60 Supra n. 59, at 2320.

61 Ibid., at 2321-2.

62 Kent v. Dulles, 78 S.Ct. 1113, 1120 (1958).

63 Aptheker v. Secretary of State 84 S.Ct. 1659, 1663, 1668 (1964); Zemel v. Rusk 85 S.Ct. 1271, 1279, (1965); Califano v. Aznavorian 99 S.Ct. 471, 475 (1978); Haig v. Agee 101 S.Ct. 2766 (1981); Regan v. Wald 104 S.Ct. 3026, 3037-3039 (1984).

64 Supra n. 54.

65 57 S.Ct. 578, 581-2 (1937).

66 Supra n. 63, at 475.

67 Ibid.

68 In Haig v. Agee, supra n. 63, the Secretary of State had refused to renew the passport of Agee, a secret agent of the CIA who disclosed names of other agents, and the modes of operation of the CIA, after he had retired from the service. The Supreme Court of the U.S. held that the refusal of the Secretary to renew the passport was justified in this case.

69 International law discusses this at length. See: Ingles Report, supra n. 14, at 45; Chipoya Report, supra n. 13, at 53; Art. 4(d) of the Strasbourg Declaration, in Hannum, supra n. 3, at 155; Article by Kiss, supra n. 8, at 279; Article by Jagerskiold, supra n. 14, at 172; Hannum, supra n. 3, at 28-29.

70 See views of the Justices in Dahar, supra n. 2.

71 Kaufmann, supra n. 2.

72 We should point out here that this legal situation, where the authorities could hide behind the total immunity granted by the law of evidence when restricting human rights for reasons of state security, was altered in 1968 by the Law of Evidence (Amendment) Law of that year. This amendemnt is now published in sections 44-46 of the Evidence Ordinance (New Version) 1971, 2 L.S.I. [N.V.] 198.

73 We would mention that Justice Silberg stated explicitly in the Kaufmann case that “the source of such security reasons lies in the personal qualities of the applicant, not in her party affiliation”. Kaufmann, supra n. 2, at 540. It follows that membership of lawful organisations and activity therein, even if it is to be found in the extremities of the political spectrum, cannot amount to sufficient grounds for restricting departure from the country on state security grounds.

74 Supra n. 62.

75 Ibid., at 1120.

76 Ibid.

77 Supra n. 63.

78 Sec. 6 of the Subversive Activities Control Act of 1950, 64 Stat. 993.

79 Aptheker, supra n. 63, at 1663, 1666-8.

80 Ibid., at 2781.

95 Laursen, Thomas E., “Constitutional Protection of Foreign Travel” (1981) 81 Colum. L.R. 902–928CrossRefGoogle Scholar; Yankelunas, Edward P., “The Power of the Executive to Restrict the International Travel of American Citizens on National Security and Foreign Policy Grounds” (1981) 30 Buffalo L.R. 781, at 790–791Google Scholar.

96 See e.g., Kol Ha'am v. Minister of Interior (1953) 7 P.D. 871; Schnitzer v. Chief Military Censor (1988) 42(iv) P.D. 617.

97 Supra n. 1.

98 Hannum, supra n. 3, at 155.

99 It is to be noted that Douglas, J. in Zemel v. Rusk when basing the right of departure on the 1st Amendment and concluding therefrom that it can be derogated from only where there is a clear and imminent danger to state security, is careful to point out that that test is appropriate for peacetime: “Restrictions on the right to travel in times of peace should be so particularized that First Amendment right is not precluded unless some clear countervailing national interest stands in the way of its assertion”: supra n. 63, at 1286.

100 Brownlie, supra n. 3, at 129-130.

101 Art. 15 of the European Convention, Brownlie, supra n. 3, at 401-2; Art. 27 of the American Convention, ibid.

102 Brownlie, supra n. 3, at 129-130. Re possible derogation from the right only as far as justified by the circumstances, see McDougal, , Lasswell, , Chen, , “Human Rights and World Public Order: A Framework for Policy Oriented Inquiry” (1969) 63 Am. J. Int'l L. 237, at 268CrossRefGoogle Scholar; Meron, Theodor, “West Bank and Gaza, Human Rights and Humanitarian Law in Period of Transition”, (1979) 9 Is. Yrbk Human Rights 106, at 113Google Scholar. For the question whether the emergency specified in Art. 4(1) of the Covenant on Civil and Political Rights (and parallel Articles in the European and American Conventions) relates to a state of emergency such as that in our region, see Lawless v. Ireland (No. 3) (1961) I European Human Rights Reports 15, 31-34; Denmark, Norway, Sweden v. Greece, (1969) 12 Yearbook of the European Convention of Human Rights 72; See in general re Art. 4(1) of the Covenant on Civil and Political Rights (and parallel provs. of the Eur. & Am. Conventions); Higgins, Rosalyn, “Derogations Under Human Rights Treaties” (1976–1977) 48 Br. Yrbk Int'l L. 281Google Scholar; Thomas Buergenthal, “To Respect and Ensure: State Obligations and Permissible Derogation”, in Henkin, supra n. 8, at 72.

103 The reference to departure from occupied territory will be discussed below, pp. 674-679.

104 See Arts. 2, 4, 6 of the Fourth Geneva Convention in Roberts, A. & Guelff, R. (ed.) Documents on the Laws of War (1984) 272–5Google Scholar (hereinafter Laws of War).

105 Supra n. 104, at 284.

106 Pictet, J. S., Commentary on the Fourth Geneva Convention, (1958) 223Google Scholar. Pictet points out that the term “national interest” is wider than “security considerations” which was proposed in the drafts of the Convention, including as it does, in addition to security considerations, also economic interests of the State.

107 Supra n. 3, at 1.

108 Supra n. 100, at 43.

109 Supra n. 104.

110 Supra, at 640-641.

111 15 L.S.I. 179.

112 Prevention of Infiltration (Offences and Jurisdiction) (Amendment) Law, 1960 (14 L.S.I. 56). There is perhaps justification for removing Egypt and Jordan from this list, since they have signed peace treaties with Israel.

113 Supra n. 111.

114 Ibid.

115 Abu Rahman v. Minister of Interior (1966) 20(i) P.D.s 201.

116 Taha v. Minister of the Interior (1981) 35(i) P.D. 249; Baransi v. Director of Permits Dept., Minister of the Interior (1983) 37(iii) P.D. 722; Badir v. Tob (1985) 39(iii) P.D. 54.

117 Taha, supra n. 116, at 250-2; Baransi, supra n. 116, at 724.

118 Taha, ibid., at 252.

119 Baransi, supra n. 116, at 725.

120 Supra n. 63.

121 Act of July 3 1926, c 772 sec. 1, 44 Stat. 887.

122 Zemel v. Rusk, supra n. 63, at 1276-9, Goldbeg, J. in minority opinion took the view that the Passports Act prescribed in S. 1 that the Secretary of State was the sole authority for issuing passports in the U.S., no other body being authorised to issue passports. In his opinion one cannot learn from the wording of the Act that the Secretary has power to impose area restrictions. See dicta on p. 1289 of the report.

123 Zemel v. Rusk, supra n. 63, at 1279.

124 Ibid., at 1279-1280. In 1978 the following was added to sec. 6 of the Passports Act: “Unless authorized by law, a passport may not be designated as restricted for travel to or for use in any country other than a country with which the U.S. is at war, where armed hostilities are in progress, or where there is imminent danger to the public health or the physical safety of U.S. traveller”. Act of Oct. 7 2978, Pub. 1 95-426, Title I sec. 124, 92 Stat. 971. 22 U.S.C. sec. 211 a. This addition laid down expressly in what circumstances the Secretary of State may impose area restrictions under the Passports Act. It is possible that another Act of Congress would allow restriction of travel to certain areas under criteria different from these in the amendment to the Passports Act. American jurisprudence has held, for example, that regulations made under the Trading with the Enemy Act restricting travel to Cuba were valid. See Regan v. Wold, supra n. 63, and criticism of that case: Hart, Brian G., “Regan v. Wald, Executive Authority and the Prohibition on Tourist and Business Travel to Cuba Through the Use of Currency Control” (1985) 34 Buffalo L.R. 395Google Scholar.

125 (1986) S.H. no. 1170, p. 107, at 118.

126 As amended in 1961, 15 L.S.I. 179.

127 Supra n. 125.

128 Maccabian v. Minister of Defence, (1952) 6(ii) P.D. 844; Meir Haim v. Minister of Defence, (1951) 11(i) P.D. 350: Vladimir Rothenberg v. Deputy Head of Manpower Division and Director of Recruitment Diu. of Ministry of Defence, (1959) 13(i) P.D. 469. In these cases, the concept of “permanent resident” appearing in the definition of “person liable for military service” was discussed. In Assayag v. Minister of Defence (1958) 12(i) P.D. 52 it was held that if a person has not yet reached the age at which he is required to apply for a permit from the army in order to go abroad, and he nevertheless requested such permit in error, and by the time he received a reply from the army he reached the age at which he was required to ask for a permit, then he must be allowed to go abroad. In Mietner v. Minister of Defence (1959) 13(i) P.D. 438 the double requirement of exit permit from both the Minister of the Interior and the Minister of Defence was discussed. This is no longer applicable, since the requirement of an exit permit from the Minister of the Interior has been abolished.

130 Order No. 34, 1967, dated 2.7.67 (hereinafter: order re Closed Areas); Preisler, Legislation in Judea and Samaria (1987) 16 (hereinafter: Preisler). There is a corresponding order for the Gaza Strip and Northern Sinai: Order re Closing of the Area (Gaza Strip and Northern Sinai) No. 144, 1968.

131 Preisler, supra n. 130, at 18 (hereinafter: General Exit Permit). Sec. 3 restricts exit of resident of the territories to Israel from the point of view of hours of stay in Israel and purpose of exit. Sec. 4 restricts entry to the Gaza area and provides that residents of Judea and Samaria can enter the Gaza Strip only via the crossing points enumerated in the section. Following a general permit issued by the Military Governor, the Minister of the Interior issued an order by his powers under sec. 17(6) of the Entry into Israel Law, 1952 which states that “a resident of Judea, Samaria, Gaza Strip or Northern Sinai … who departs from that territory under a permit, including a general permit, issued by the commander of the IDF in the area, is exempt from the provisions of sec. 7 of the Law and from the provisions of the Law regarding a permit for transitory residence or visitor's residence, as long as he fulfils the conditions of such permit”. The Minister's order is dated 25.2.1968, (1968) K.T. no. 2190, p. 910. Re Gaza Strip, see General Exit Permit (Gaza Strip) (No.2), 1972 and General Exit Permit from Gaza Strip and Northern Sinai Region to Judea and Samaria Region, 1968.

132 Emphasis added. (Y.Z.)

133 Preisler, supra n. 130, at 17 (hereinafter: General Entry Permit — Israeli and Foreign Residents). Re Gaza Strip there are two permits: General Entry Permit to the Region (Gaza Strip); 1969 and General Entry Permit (Residents of Occupied Regions) 1969.

134 General Exit Permit, supra n. 131.

135 General Entry Permit (Israeli and Foreign Residents), supra n. 133.

136 Ibid.

137 Order re Closed Areas, supra n. 130.

138 General Exit Permit, supra n. 131.

139 Preisler, supra a, 130, at 29.

140 Order re Closed Areas, supra n. 130.

141 Reg. 111A. does not apply in Israel, having been repealed by the sec. 3 of the Emergency Regulations (Foreign Travel) (Amendment) Law, 1961, 15 L.S.I. 179. Despite the repeal by the Israeli legislature, the regulation continues to apply in the territories. The Defence Regulations applicable in the territories are the version as of May 1948 when the British Mandate terminated, unless altered by the Military Governor as specified in the Order re Interpretation (Additional Provisions) (No. 5) (Judea and Samaria) (No. 224), 1968, Preisler, supra n. 130, at 5. For application of Defence (Emergency) Regulations in the occupied territories as of May 1948, see Abu Awad v. Commander of Judea & Samaria Region (1979) 33(iii) P.D. 309, at 312-3; Kawassma v. Minister of Defence (1980) 34(i) P.D. 617, at 622-6.

142 Preisler, supra n. 130, at 56.

143 In view of the fact that the regulations have become law in the territories under the proclamation re Law and Administration (West Bank Region) (No. 2) 1967 which provides in sec. 2: “that the law in force in the region on 7.6.67 shall remain in force as far as it is not inconsistent with this proclamation, or with any proclamation or order issued by me, and subject to modifications deriving from the establishment of the Government of the IDF in the region”. This Proclamation is in force from 7.6.67. The Order re Closed Areas, supra n. 130, came into force later, i.e. 16.7.67.

144 Despite the fact that the residents do not have an inherent right to leave under the governor's orders, residents have petitioned the High Court of Justice where they have been prevented from leaving. In a series of cases, the High Court decided that the petitioners were not to be allowed to leave the country: Bassisso v. IDF Commander in Judea & Samaria (not published); Altanov v. IDF Commander in Judea & Samaria (not published); Daoud v. Head of Civil Administration in Judea & Samaria (not published); Asham v. IDF Commander of Judea & Samaria (not published); In Agav v. IDF Commander in Gaza Region (not published), the High Court acceded to the petitioner's application to return to Saudi-Arabia, but stated that this was on humanitarian grounds and beyond the strict letter of the law.

145 Laws of War, supra n. 104, at 288.

146 By doing so we adopt the approach of Draper, G.I.D.A., “The Relations Between Human Rights Regime and the Law of Armed Conflict” (1971) 1 Is. Yrbk Human Rights 191, at 198Google Scholar; Robertson, , Human Rights in the World (1972) 174–175Google Scholar; Cohen, E.R., Human Rights in the Israeli Occupied Territories 1967-1982, (1985) 1–9Google Scholar; Benvenisti, E.: “The Applicability of Human Rights Conventions to Israel and the Occupied Territories” (1992) 26 Is. L.R. 24CrossRefGoogle Scholar. For a different approach see: Pictet, J. S., Humanitarian Law and the Law of War Victims, (1975) 13–15Google Scholar.

147 Supra nn. 100-102, at 42-43.

148 Ibid.

149 The regulations are dated 25.2.68. (1968) K.T. no. 2190 p. 911.

150 Preisler, supra n. 130, at 17.

151 Ibid.

152 Ibid.