Not a
few times did the Israeli High Court of Justice frustrate government
policy and openly annul its decisions. When the decision to demarcate
the residence zone (to deport to Gaza) two family members of a terrorist
was approved, the public was relieved, and it seemed the Supreme Court
put a kosher seal on the government’s new policy in its fight against
terrorism, and that deportation to Gaza of terrorists’ family members as
a deterrent action would be made possible. But a more thorough reading
of the decision of the High Court of Justice in the Ajuri case (that was
made unanimously by a seat of nine judges) reveals a completely
different picture.
The
High Court of Justice, through President Barak, decided to approve the
decision of deportation but affixed to it restrictions and preventive
measures. The main restriction is that this measure can be taken only if
future danger from the person is foreseen. That is, it is not enough
that this person was involved in or aided terrorist action in the past,
but it has to be proved that he or she might continue helping terrorism
if not deported. This restriction practically frustrates the demarcation
of residence zone as a deterrent action, since most of the terrorist’s
family members, who knew about his or her intent and even helped him,
are not up to the strict criterion set by President Barak.
In my
view, President Barak’s opinion is erroneous in two respects. Firstly,
it is based on an erroneous interpretation of article 78 of the Fourth
Geneva Convention that regulates the means a military force can use
regarding a civilian population. Secondly, there was no reason to apply
article 78 of the Convention to the facts of the case (actual help of
family members to terrorists), but because of the real involvement of
family members in terrorist activity, article 5 of the Geneva Convention
could have been applied to them, which enables an administration to
deny people engaged in terrorism part of the privileges and protection
granted by the Convention to the civilian population as a whole.
Moreover, the demand to establish a future danger from the candidate for
deportation falls in line with his interpretation of article 5, not
with his interpretation of article 78 of the Convention. That is,
President Barak was mistaken in granting the protections of the
Convention to people involved in terrorist activities.
In my
humble opinion, article 78 of the Geneva Convention, which regulates the
demarcation of residence zone of a civilian in an area under military
rule, does not necessarily require the existence of future danger, but
finds sufficient the existence of “a need for reasons of security
necessity.” Though this measure has to be interpreted in such a way as
to minimize damage to the civilian population, it will also fit the
security needs of the involved state. In relation to demarcation of
residence zone (which is a lighter measure than administrative detention
that is regulated in the same article), it seems this measure may be
activated against family members who knew about the activity of their
relative but did nothing to prevent it.
The
interpretation of President Barak of the Geneva Convention is not
anchored in the terms and purpose of the Convention; it might reduce the
incentive of the combating sides to obey the Convention. Moreover, such
an interpretation of the Convention would demand a dear price from the
civilian population in Israel, since according to it, those who
associate with terrorism receive similar protection to those relatives
of innocent Arab civilians. Actually, by his interpretive tools,
President Barak ties the hands of Israeli democracy in its war against
terrorism.
