Ariel Center for
Policy Research



NATIV  Volume Sixteen   Number 2 (91)  ■  March 2003 ■ Adar II 5763 ■ Ariel Center for Policy Research





Euthanasia for the Demarcation of a Residence Zone

Itzhak Bam

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.

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