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The Non-Justiciability of Military Measures

Published online by Cambridge University Press:  12 February 2016

Yaacov S. Zemach
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Type
Cases
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Israel Law Review , Volume 9 , Issue 1 , January 1974 , pp. 128 - 138
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1974

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References

1 The orders were issued under sec. 70 of the Area Commander's Order re Security Directions, 1967.

2 Their number, according to the Government of Israel, was 4,950, whereas the petitioners claimed that they reached 20,000.

3 In Oved v. Minister of Defence, (1972) (I) 27 P.D. 169, 176, where a regular army officer complained of the fact that his undertaking to serve in the regular army had been rescinded before the due date owing to his unsuitability: petition dismissed.

4 Actually, Landau J. had already raised the problem whether the High Court had any jurisdiction at all to scrutinize measures taken by the armed forces of the State within areas of military government which came under Israeli control after the Six Day War. Since the State attorney did not argue to the contrary, the Judge assumed, “without deciding the matter”, that personal jurisdiction existed over officers of the military government who belonged to the executive branch of the State, since they were “persons fulfilling public functions under the law”, and therefore subject to the control of the Court under sec. 7(b)(2) of the Courts Law, 1957. The law on this matter, by virtue of which the military government functions, may be found in the general powers of the Government and its Ministers under secs. 29 and 31 of the Basic Law, the Government (1968) 22 L.S.I. 257: §29—“The Government is competent to do in the name of the State, subject to any law, any act the doing of which is not enjoined by law upon another authority”. §31—“(a) A power vested in the Government under any Law may be delegated by it to one of the Ministers, (b) A power vested in one of the Ministers under any Law … other than a power to make regulations with legislative effect, may be delegated by him, … to a public servant …” Likewise, Landau J. dealt with the problem of the application of international law to this matter but did not reach any conclusion on the point and explicity left the question open.

5 On the problem of justiciability in Israel in general, see Witkon, A., “Justiciability” (1966) 1 Is.L.R. 40.Google Scholar

6 Actually, Witkon J. considered that the High Court of Justice had no jurisdiction to entertain the petition, since the orders concerned had the status of legislation issued by the supreme legislature of the area concerned, which came under the administration of the State of Israel after the Six Day War and the Court was therefore bound to acquiesce in it in the same way as in any other sovereign legislation, and not to query it. In this matter he disagreed with Landau J. who considered that from the point of view of supervision of the Court, the orders consisted of an internal norm which an administrative authority had laid down for its own guidance.

7 Al-Ayoubi v. Minister of Defence (1950) 4 P.D. 222, 228. Heretofore, the one area of undisputed non-justiciability has been that of the State's foreign relations. See Witkon J. in National Circles v. Minister of Police (1968) (II) 24 P.D. 141, 165 and Silberg D.P. id., at 158.

8 369 U.S. 186, 217 (1962). See also Powell v. McCormack 395 U.S. 486 (1969).

9 It is not sufficiently clear from Witkon J.'s judgment whether the fact that the matter concerned the military government of areas which came under Israel administration after the Six Day War was a decisive factor in his ruling as to lack of justiciability or whether the same applied to every military or security measure.

10 Cf. Landau, J., in Shalit v. Minister of Interior (1969) 23 P.D. 477, 517, 530 (“Who is a Jew?” case).Google Scholar

11 Murphy, J., dissenting in Korematsu v. United States 323 U.S. 214, 233–34 (1944).Google Scholar

12 Id. at p. 219 (Black J.)

13 Id.Cf. Hirabayshi v. United States 320 U.S. 81 (1943), concerning curfew orders issued by military authorities subjecting all persons of Japanese ancestry in prescribed areas to remain in their residences during specific hours of the day. The United States Supreme Court upheld the orders as an exercise of the power of the Government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

14 323 U.S. 214, at 234 (Murphy J.)

15 Id.

16 See, especially, Jackson J.'s opinion, id. at p. 242.

17 This reason, unconstitutional social discrimination, was the main basic for the disqualification of the military orders according to the dissenting opinions: “A military judgment based upon such racial… considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations.” Murphy J., at p. 240. Moreover, most of the criticism of the majority opinion was based on this same deficiency. See, e.g., Jackson J.'s opinion id. at p. 242. See also Dembitz, , “Racial Discrimination and the Military Judgment” (1945) Colum. L.R. 175CrossRefGoogle Scholar; Freeman, , “Genesis, Exodus and Leviticus—Geneology, Evacuation and Law” (1943) 28 Cornell L.Q. 414.Google Scholar

18 See, e.g., Daoud v. Minister of Defence (1951) 5 P.D. 1117 concerning the evacuation by the army of the village of Ikrit, during the War of Independence. The security authorities did not allow the inhabitants to return to their village even three years after the War. Meantime, by an order issued by the Minister of Defence, the area was declared a “security zone”, and entry thereto and exit therefrom was prohibited to anyone who was not a “permanent resident” of the zone on the date when the order came into force. The High Court of Justice decided that the provision concerned did not apply to the petitioners even though they were not in fact residents of the zone on that date, in view of the fact that their right to return to the village and settle therein had up to then been denied them “without any legal basis”, and owing to the “unjustified opposition” of the security authorities. The Court therefore ordered those authorities to restore them to their village.

In another case, Asian v. Military Commander of Galilee (1951) 5 P.D. 1481 the Court quashed an order of the military commander which, inter alia, proclaimed the area of the village of Rabasiyeh to be a “closed area”, and which was issued by virtue of his authority under the Defence (Emergency) Regulations, 1945. The reason for the Court's decision was that it considered the order concerned to be a regulation having legislative effect which had, improperly, not been published in the official gazette (Reshumot).

19 On the other hand, in the second round of the Aslan case, (see preceding note) Aslan v. Military Government of Galilee (1955) 9 P.D. 689, such a necessity did arise, but the Court was given no opportunity of knowing what the reasons for the security authorities' action were. The inhabitants of Rabasiyeh who had not been restored to their village, claimed that the refusal of the military commander to grant them entry and exit permits to the village was inspired by improper motives. However, in view of the certificate of the Minister of Defence, stating that disclosure of the reasons for closing the area would prejudice the security of the State, the Court was not able to examine the reasons behind the security authorities' action as such. The fact that Rabasiyeh is not on the border of the State and is outside the security zone close to the frontier, suspicions arose about the hidden “security reasons”, but the Court would not decide in favour of the petitioners merely on the basis of such suspicion.

20 See, e.g., Abu Gosh v. Military Commander of Jerusalem Corridor (1953) 7 P.D. 341; Al-Ayoubi v. Minuter of Defence (1950) 4 P.D. 222; Arouk v. Controller of Road Transport (1952) 6 P.D. 594; Greib v. Controller of Road Transport (1952) 6 P.D. 397; Asian v. Military Commander and Governor of Galilee (1955) 9 P.D. 689; Al-Yosuf v. Military Governor (1954) 8 P.D. 341; Kaufman v. Minister of Interior (1953) 7 P.D. 534.

21 Landau, J., in Kaufman v. Minister of Interior (1953) 7 P.D. 534 at 541Google Scholar: “We have before us a citizen whose freedom of movement is restricted by a decision couched in general language, and when she applies to this court for a remedy, it is contended against her, again in the most general terms, that the refusal of her request is based on ‘security reasons’, while the nature of such reasons is revealed neither to her nor to the Court. The petitioner is thus denied in effect the possibility of putting her case to the Court, since the arguments of the opposite side can only be countered if they are known; one cannot argue with a sphinx”. It would appear that in view of this the Evidence Ordinance was amended to provide for privilege of certain evidence for security reasons, at the same time allowing the Court to order the evidence to be disclosed in the interests of justice: “A person is not bound to give, and the court shall not admit, evidence which the Prime Minister or the Minister of Defence, by certificate under his hand, has expressed the opinion that the giving thereof, is likely to impair the security of the State … unless a Judge of the Supreme Court, on the petition of a party who desires the disclosure of the evidence, finds that the necessity to disclose it in the interests of justice outweighs the interest in its non-disclosure”: The Evidence Ordinance (New Version), sec. 44(a) (1971) 18 New Versions 421.

22 On this aspect see an extensive article by Prof.Harnon, : “Evidence Excluded by State Interest” (1968) 3 Is.L.R. 387, 394–400.Google Scholar