LAW REPORTS

JUDICIAL DECISIONS

in The Palestine Yearbook of International Law Online
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References

Editor's Note

1. Around this time, Moshe Gilboa, director of world Jewish affairs of Israel's Ministry of Foreign Affairs said that the issue of Ethiopian Jewry had top priority of his depart- ment and "There are countries, organizations and individuals who are helping in the cause of Ethio- pian Jewry. For obvious reasons, they can't be named, but the day will come when they'll be recog- nized and given credit"- See, Rapoport, Exodus of the Black Jews, Jerusalem Post Int'l, Sept. 9-15, 1984, at 12-14. The quoted parag- raph appears at 14, col. 1.

2. The TEA is a Belgian charter com- pany directed by the 51-year old Mr Georges Gutelman, a Belgian orthodox Jew. The Company has a very strong business relationship with the American forces stationed in Europe. Mr Gutelman also has close links with Israel, particularly in the field of arms business. He had been trying to sell American radar jamming devices, adapted by Israel during the Lebanese war, to the Bel- gian air force. What further made Mr Gutelman the perfect choice for Operation Moses was his contacts in Sudan. For years TEA had been fly- ing Muslim pilgrims from Sudan and other North African countries to Mecca. The sight of TEA planes flying in and out of Khartoum would suprise no one. See, generally, Par- fitt, Operation Moses, at 95 (1985) (hereinafter cited as "Parfitt").

3. The disclosure of the operation while in progress was, curiously enough, made by Israeli officials, who lifted military censorship on the operation. This act brought harsh criticism from White House and State Department officials who "were shocked and deeply irritated by Israel's decision on Thursday to lift military censorship on the oper- ation"- An official in Washington was quoted as having said that: "We have stuck our necks out on this operation and suddenly Israel changes the rules without consult- ing us." Jerusalem Post Ins'1., Jan. 12, 1985, at 1, cols. 2-5; p.6, cols. 1-4. The quoted statements appear at 6, col. 1. 4. In late December, 1984, President Ronald Reagan ordered a U.S. Air Force transport plane to fly relief supplies to Ethiopian refugees in Sudan. The order "marks the first time a U.S. military aircraft has been used in the famine relief efforts." IHT, Dec. 24-25, 1984, at 2, cols. 3-4. For further details on the involvement of the U.S. in the Falasha question, see Parfitt, Id. at 91-92. 5. Special Supplement to the Official Gazette No. 1320 of 9.9.1983, at 1.

6. President Numeiri went on an offi- cial visit to Washington on March 27,1985. On April 6, while returning from his U.S. visit, he was over- thrown by a mass movement in Sudan and he ultimately took refuge in Egypt where he is still liv- ing. The new Sudanese Government filed a request with the Egyptian Government for the extradition of Numeiri. The request was rejected.

7. Provisional Order No. 36 of 1983, Special Supplement to the Official Gazette No. 1323 of October 10, 1983, at 4.

8. Act No. 32 of 1974, Laws of Sudan, Vol. 7 (5th ed.), at 137 (Official English translation).

9. In his first interview after the dis- closure of Operation Moses, Presi- dent Numeiri said that Ethiopian Jews and all other refugees in Sudan were free to leave his coun- try provided they did not go "di- rectly" to Israel. See, IHT, Jan. 22, 1985, at 1, cols. 5-7; at 2, cols. 7-8.

10. The rebels referred to in this part of the judgment are those of Southern Sudan who since 1955 have been a source of unrest in the country.

11. Parfitt reported in his book that Gutelman had approached his old friend Jean Gol, the Belgian Minis- ter of Justice and Vice Premier and briefed him about the operation. As the Minister responsible for the Bel- gian security service, Gol was the one official who would need to know about the operation. Having obtained the approval of his Prime Minister, Gol gave his promise to Gutelman to cooperate. When the news about the airlift was leaked, the Belgian news agency reported that even the Belgian Minister of Foreign Affairs had been unaware of the operation. Id. at 96.

12. See, in general, Rifaat, Refugees and the Right of Asylum: An African Perspective, 40 Rev. Egyptienne de droit international, at 71 (1984). 13. Provisional Order No. 30 of 1978, Special Supplement to the Official Gazette No. 1243 of Aug. 12, 1978, at 150.

14. On the issue of superior order and command responsibility, see Parks, Command Responsibility for War Crimes, 28 Mil. L. Rev. 1 (1973); Green, War Crimes, Extradition and Command Responsibility, 14 Isr. Y.B.H.R. 17 (1984). In this article Green deals with the issue in the context of the Sabra and Shatilla massacres. 15. Text in Laws of the Sudan, Vol. 4 (5th ed.), at 216 (Official English translation).

* Editor's Note: Deportation of civilians from occupied territories is a very harsh punishment. Thus spoke Israel's Supreme Court in the cases translated herein. Nevertheless, the Court has been obsequious to virtually all arguments advanced by the military authorities. It accepts the lethal principles of "secrecy of evidence" submitted by these authorities, in acquiesces to the resuscitation of defunct laws, and, further, it indulges in laborious analysis of subsidiary legal technicalities to lend the military orders and practices credibility and deference. The central issue of the right of a per- son to remain in his home and with his family has een universally ignored. More sig- nificant is that at the time Israel abolished the punishment of deportation from its law books (see note at 137, infra), it reactivated it in the Occupied Territories. The limitations imposed by international law on the occupying power have been summarily rejected by the Supreme Court. Elementary laws and principles of human rights and the obligations provided for in the Fourth Geneva Convention of 1949, which Meir Shamgar pledged to de facto apply when he was the Attorney-Gen- eral of Israel, have been unashamedly abandoned by him as the current President of the Supreme Court. ** Piskei Din (Judgements of the Supreme Court of Israel) vol. 35, part 2, at 113 - 137 (19 ). Translation for the Yearbook. All notes are added by the Editor. The Piskei Din Editor's Note: The publication of this judgment was not

approved at the time. After further consideration, and in view of the impor- tance of this ruling, it was decided to publish it. For further developments in the case which the petition deals with, see HCJ 698/80, Al-Qawasmi et al vs The Minister of Defence et al, Piskei Din, vol. 35, part 1, at 617.

1. See the text, infra, at 134. 2. On the ambivalent position of the Supreme Court with respect to the applicability of the Fourth Geneva Convention to the Occupied Arab Territories, see its judgments in the Elon Morch case in I Pal. Y.B. Int'l L. 134 (1984), the Ansar Camp case, Id. at 164; and the Beit-El case, II Pal. Y.B. Int'l L. 134 (1985). The U.N. Security Council has repeatedly confirmed the applica- bility of the Fourth Geneva Conven- tion to the Occupied Territories. See, for example, its Res. 446, Mar. 22, 1979. It should be recalled that the Security Council adopted unanim- ously on December 19, 1980 its Resolution 484 (1980) in which it reaffirmed the applicability of the Fourth Geneva Convention to all Arab terriotories occupied by Israel in 1967 and "Declared it imperative that the Mayor of Hebron [Mr. Qawasmi] and the Mayor of Halhoul [Mr. Milhem] be enabled to return to their homes and resume their responsibilities." "

3. See the Official Gazette (Palestine) No. 1602 Supp. 2, Aug. 7, 1947, at 1170.

4. The argument was challenged by a leading Palestinian lawyer in his affidavit to Israel's Supreme Court. See infra, at 150. See also the new arguments as explained in Hilter- mann's study infra, at 154. 5. The punishment of deportation has been revoked within Israel. See 33 Laws of the State of Israel (LSI) at 89, (1979) and in particular, Article 12 thereof. See note at 173, infra.

6. The Entry into Israel Law was issued in 1952 and not in 1955. See 6 LSI, at 159. This Law was amended in 1966 and not in 1974. See 20 LSI, at 46. The reference to Article 14 in the judgment is irrelevant. There must be an error in the citation by Piskei Din's Editor. The Israeli Laws (the official English translation) do not include the 1974 amendment.

7. The Courts Law, 11 LSI, at 157 (1957). Article 7(a), defining the jurisdiction of the Supreme Court as a High Court of Justice, provides that the High Court "shall deal with matters in which it deems it neces- sary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal."

* Piskei Din (Judgments of the Supreme Court of Israel), vol.39, part 1, at 309-336 (1985). Translation for the Yearbook. All notes are added by the Editor.

1. Text (officially in Arabic and Heb- rew only) in 19 Proclamations, Orders and Appointments of the Israeli Defence Forces in the Gaza Strip Area and Northern Sinai (hereinafter "POA-GS"), March 15, 1970, at 1339. See the text of Arti- cles 85-87 as amended, infra at 148. Military Orders pertaining to the West Bank will be cited as "POA- WB".

2. See text infra, at 148.

3. Text in 7 POA-WB, Dec 10, 1967 at 265. This Order was repealed by vir- tue of Order 329 of June 29, 1969. Text in 19 POA-WB, Nov 20,1969, at 665. Text infra at 146. Article 3 of the old Order and Article 4 of the new are identical and they are also similar to the provision of Article 4 of an Israeli law reproduced infra at 139.

4. 1 POA-GS, Sept 14, 1967 at 5. This Order was issued on June 6, 1967 and became effective immediately. 5. 3 POA-GS, Dec 31, 1967 at 233. A similar Order was issued for the West Bank area, see Order 68 in 5 POA-WB, Nov 15, 1968 at 178. The Order was issued on Sep. 10, 1967. 6. 1 POA-GS, Sept 14, 1967 at 39. 7. 4 POA-GS, Jan 24" 1968 at 265. 8. Id. at 309.

9. See text infra, at 148. 10. See text infra, at 139. 11. 6 POA-WB, Nov 27, 1967 at 106. The Order was issued on Aug. 29, 1967 and became effective immediately. 12. See supra, note 3.

13. See text of this Article in note 4, infra, at 127. 14. 16 POA-GS, Jan. 18, 1970, at 1157. The Order was issued on Aug. 7, 1969.

* Piskei Din (Judgments of the Supreme Court of Israel), vol. 40, part 1, at 219 - 224 (1986). Translation for the Yearbook. All notes are added by the Editor. ** See the amicus curiae brief that was submitted to the Supreme Court of Israel on behalf of the petitioners in II Pal. Y.B. Int'l L. at 174 - 181 (1985). The brief pro- vided on excellent legal analysis of the issue of deportation of civilians under international law.

1. See text infra, at 137. 2. See text infra, at 136. 3. See text infra, at 138. 4. 2 Laws of the State of Israel [new version], 198 (1971). Article 44 reads as follows: 44. (a) A person is not bound to give, and the court shall not admit, evidence regarding which the Prime Minister or the Minister of Defence, by certificate under his hand, has expressed the opinion that its giving is likely to impair

the security of the State, or regard- ing which the Prime Minister or the Minister of Foreign Affairs, by certificate under his hand, has expressed the opinion that its giv- ing is likely to impair the foreign relations 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 for the purpose of doing justice outweighs the interest in its non- disclosure. (b) Where a certificate as referred to in subsection (a) has been sub- mitted to the court, the court may, on the application of a party who desires the disclosure of the evi- dence, suspend the proceedings for a period fixed by it, in order to enable the filing of a petition for disclosure of the evidence or, if it sees fit, until the decision upon such a petition.

* Piskei Din (Judgments of the Supreme Court of Israel), vol.40, part 1, at 309-310 (1986). Translation for the Yearbook

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