Newsletter Legal Department


    Newsletter- issue #8


    1.        News                                                                                                                  2

    1.1     Israel has ratified the Convention on the Rights of People with Disabilities

    1.2     Hamas official Mahmoud Zahhar declares that “Gaza is free of occupation"

    1.3     High Court of Justice determines the policy regarding passage permits through Israel is reasonable

    1.4     Supreme Court orders the disclosure of a document containing information regarding the supply of food to Gaza

    1.5     District Court determines the attack of the Al-Dahia house during Operation Cast Lead was an act of war

    1.6     District Court for Family Matters orders the return of two children to the Netherlands based on the child abduction convention


    2.        Upcoming Events and Other Notices                                                               8

    2.1     Transitions in/to Democracy: Contemporary Changes and Challenges

    2.2     International Law Forum, Hebrew University of Jerusalem

    2.3     European Master Program in Law and Economics, University of Haifa








    The judgments and bills cited here are currently published only in Hebrew. This is an unofficial translation only for the purpose of this newsletter update, and in no way replaces any future official translations which may be available for the documents mentioned.





    Israel has ratified the Convention on the Rights of People with Disabilities

    On 28 September 2012 the State of Israel has ratified the Convention on the Rights of People with Disabilities (CRPD). Israel has first signed the Convention on March 2007, and has now ratified it following an examination of the relevant domestic legislation and its conformity with the requirements of the Convention. This ratification will have an effect on the daily lives of 1.6 million people in Israel living with disabilities (out of more than 7.5 million people in total). The Convention determines a standard of equality, full participation, inclusion and integration into society in several aspects of life, including in education, community-living, health and rehabilitation, accessibility, legal capacity, family and parenthood, accessibility to justice, employment, etc. 

    For further information about the Convention, click here.

    Hamas official Mahmoud Zahhar declares that “Gaza is free of occupation"

    Seven years after Israel disengaged from the Gaza Strip, Hamas Official Mahmoud Zahhar asserted on 15 September 2012 that “Gaza is free of occupation, and contiguity with the outside world is easier as visitors from all over the world visited the coastal enclave.” In addition, he noted that the economic situation has improved noticeably and the Gaza Strip became self-reliant in several aspects because lands in former Israeli settlements were planted. Lastly, Zahhar pointed out that the economic conditions in the Gaza Strip are much better than in the West Bank; and that in case the Palestinian Authority will collapse, the resistance program is ready.

    For the full article, click here.

    High Court of Justice determines the policy regarding passage permits through Israel is reasonable (HCJ 495/12)

    On 24 September 2012 High Court of Justice has dismissed a petition requesting to grant four Palestinian students, residents of Gaza, passage permits from Gaza through Israel for the purpose of academic studies at Bir Zeit University in the West Bank.

    The petitioners have argued that by denying the students a direct passage through Israel, the State is violating their right of movement, right to education and right of occupation. The State on the other hand has asserted that the students are foreigners, residents of Gaza, and thus do not have a right to enter Israel. Any decisions regarding policy exceptions - according to which residents of Gaza are permitted entrance into Israel - are limited to exceptional humanitarian cases. Academic studies do not fall within the exception of humanitarian necessity.

    Although the petition was dismissed by the majority of the Court, the first judgment - written by Justice Rubinstein - was a dissenting opinion, indicating the reasons for accepting the petitioners' request. In his dissenting opinion, Justice Rubinstein has indicated that during the past few years the State has increased the number of people permitted entrance from Gaza to Israel. The policy regarding exceptional humanitarian cases has been broadened, and a greater verity of reasons now exists based on which Gazan people can request a passage permit. These policy changed have been developed whereas the basic situation of hostilities between Gaza and Israel continued, and stability still seems far away.

    Justice Rubinstein has then noted that the Court had never found a reason to interfere with State policy on this issue, understanding the complexity of the situation. However, the recommendations and constructive dialogue the Court has been having with the State over the years, have resulted in some policy alterations in this way or another. Justice Rubinstein further indicated that it seems that contrary to its proclaimed policy regarding only a narrow humanitarian exception, the Israeli authorities nevertheless examine every request on a case-by-case basis, and additional "institutional" exceptions do exist.

    Lastly, Justice Rubinstein has stressed that the humanitarian obligations the State of Israel has towards the population in Gaza - as result from the situation of hostilities between the two entities and the law of war[1] - do not include the freedom of occupation and freedom of movement. The residents of Gaza are subjects of a foreign entity, and just like the citizens of Canada are not entitled to "regular" civil rights in the United States - unless the two have agreed to that - the same applies for Gazan residents in Israel. However, although the right to study in the West Bank and a passage through Israel may not be included among the rights of Gazans in Israel, Justice Rubinstein nevertheless concluded that there should be an established exceptions mechanism to examine all requests on a case-by-case basis, and not only humanitarian cases.

    The majority judgment, written by Deputy Chief Justice Naor, nevertheless disagreed with the reasoning provided by Justice Rubinstein. Deputy Chief Justice Naor first stressed that the starting point for this discussion should be that foreign citizens do not have an entitled right to enter into the State of Israel, just as accepted for any other sovereign state. The state of affairs between Israel and Gaza is complex and sensitive, and the Court has therefore accepted the assertion of the State that it cannot examine every request on a cases-by-case basis.

    Deputy Chief Justice Naor then indicated that every "exception" given in one case, results in additional petitions claiming discrimination. Indeed, where the cases are similar - for example, students - it is difficult to deny that discrimination does arise from the situation. Thus, apart from humanitarian cases which require urgent medical care, it would be a mistake to order the State to create additional exceptions. If the State chooses from time to time to provide permits in other cases as a way to promote certain policies - for examples, in trade matters, agricultural exports, etc. - that is a prerogative it is entitled to. However, the State is not obligated to do so, and there is no reason for the Court to order such an obligation.

    Justice Zilbertal has furthermore indicated in his separate opinion, concurring with Deputy Chief Justice Naor, that over the years the Court has never found any extreme unreasonableness in the State policy regarding the grounds for permitting residents of Gaza into Israel. Ordering the State to establish an exceptions mechanism is necessarily a remedy required only if the Court finds that a certain policy is unreasonable in a way that requires it to interfere with the discretion given to the State. Since this has not been the case, there is no reason to order such a shift in State policy.

    Therefore, by a majority of two to one, the Court has dismissed the petition.  


    Supreme Court orders the disclosure of a document containing information regarding the supply of food to Gaza (Case No. 3300/11)

    On 5 September 2012 Supreme Court has rejected an appeal filed by the State and ordered it to disclose a document containing factual information presented during the discussions regarding food supply to Gaza at the time of the blockade (the contentious document). The State had argued that the contentious document represents an opinion which was presented during internal deliberations, and thus falls within the exception to the Freedom of Information Law (FIL).

    The Court first listed the relevant provisions of the FIL. The right to receive information from public authorities is the prerogative of all people in a democratic society, and an important instrument for the realization of freedom of expression and other rights. However, the right to receive information is not absolute, and should be balanced accordingly with conflicting interests or liberties. One of those interests is the public interest of genuine deliberations and effectiveness in policy decision-making, which requires to uphold an open-minded environment in internal discussions regarding public policy-making, and to make sure that everyone can express their opinions freely without worrying whether their personal views become public information.

    The Court then indicated that for the purpose of balancing between conflicting interests, the legislature had determined in articles 8 and 9 of FIL several exceptions which allow the public authority a margin of appreciation when deciding whether to disclose information and of what kind. Then, the Court stressed, even when the requested information falls within one of the exemptions listed in articles 8 and 9, one should nevertheless proceed to articles 10 and 11, which determine tests for reasonableness and proportionality, for concluding whether the information can be disclosed or not. Therefore, even if an exemption is identified, it is still necessary to examine whether it would be reasonable to nonetheless disclose the information and whether other means to protect the interests while still disclosing the information, even partially, are available. Lastly, every decision regarding disclosure of information is subject to judicial review.

    Article 9(b)(4) of FIL allows a public authority to refuse disclosing information that relates to internal discussions (for the purpose of protecting the public interest of genuine and effective decision-making). The State has contended that the contentious document is only a draft presented as part of internal deliberations on the issue of humanitarian needs in Gaza, and the model which was eventually implemented was not the one presented in the contentious document.

    The Court accepted that the contentious document is a draft, and noted that the fact that it contains statistics and facts does not alter its characterization as a draft which falls within the exemption of article 9(b)(4). Furthermore, the State disclosed other information relating to the issue, and specifically those documents which laid the grounds for the chosen policy. Thus the public interest of transparency in public actions had in fact been preserved.

    Then the Court went on to examine the reasonableness of the decision of the State not to disclose the contentious document. It had indicated that while security and foreign affairs concerns can be a legitimate consideration in a decision on whether or not to disclose information; the State has failed to demonstrate any substantial difference in this regard between the contentious document and the other documents which were disclosed. Furthermore it was never claimed that disclosing the contentious document will ensue any difficulties for Israel's foreign and security relations. Lastly, the Court pointed out that the State has not examined the question of proportionality and whether other means, such as partial disclosure, exist.

    Finally, the Court concluded that even if all these considerations have not yet provided a clear determination, an ultimate consideration tips the scales towards disclosure: the fact that the content of the contentious document was already revealed in an Israeli daily newspaper article and in a professional journal is determinative in this regard. Any damage which could have been said to result from disclosing the document now, is no greater than the damage already had been done by the unofficial publication of its contents.

    The two other Supreme Court Justices sitting in the case have appended their own separate opinions, dissenting on several substantial matters of the judgment - specifically with regard to the issues which should be taken into consideration regarding disclosure and with respect to some aspects of public administration - but all have concurred with the final decision to reject the appeal and order disclosure.

    District Court determines the attack of the Al-Dahia house during Operation Cast Lead was an act of war (T.A 35106-08-10)

    On 5 September 2012 District Court in Nazareth has dismissed a case requesting civil damages to be paid to the estates and dependants of the Al-Dahia family. The case involved an attack on their house during Operation Cast Lead. The original target was identified to be a Hamas operative house been used as a weapons storage. However, as a result of an operational error, the house of Al-Dahia family was attacked instead of the original target. The attack resulted in the death of 22 members of the family and the injury of another member.

    Article 5(b) of the Israeli Civil Wrongful Ordinance determines that where the State argues, as a preliminary matter, that it is not responsible for damages, for the action is an act of war according to sub-paragraph (a), the Court will examine the matter, and if it is satisfied that the action is indeed an act of war, the Court will dismiss the claim.

    The Plaintiffs have argued that the exemption of article 5 should not be applied generally to the entire period of Operation Cast Lead, and that every case should be examined separately to determine whether the specific action qualifies as an act of war within its meaning in article 5 of the Ordinance. Where it is determined that the specific action was an action of "law enforcement" instead of an "act of war", the State does bear responsibility for negligence or other wrongful act.

    The Court first indicated that article 5 of the Ordinance determines that the State is not responsible for actions done as an act of war by the Israel Defence Forces. It then noted that according to the Court jurisprudence and several amendments of the Ordinance over the years, it seems that the characterization of the action should be determined by examining the entire circumstances of the situation and should not be limited only to examining the nature of the act by itself. Finally, the Court applied this logic to the specific case, and concluded that the action falls within the definition of an act of war.

    Lastly, the Court noted that although the State admits that the house of Al-Dahia family was attacked as a result of mistake of identification; neither the jurisprudence of the Court nor primary legislation have indicated any exceptions to the rule according to which the State is responsible for negligence or other wrongful acts when it carries out law enforcement actions, and is exempt from such responsibility for actions which qualify as acts of war, regardless of the question of negligence. Thus, while acknowledging the tragic circumstances of the event, the Court dismissed the case.

    The Court however stressed that according to international law, the question of legality of an action carried out as part of the conduct of hostilities is determined based on the information as existed at the time of the action, and not on further information which became known at a later stage. The law recognizes the difficulty facing the military commander in the battlefield, when he is required to take operational decisions under the fog of uncertainty. The law therefore protects those who made an honest decision, based on existing information at the time, even if at a later stage it turned out to be wrong.   

    District Court for Family Matters orders the return of two children to the Netherlands based on the child abduction convention (161-07-12)

    On 3 August 2012 Tel Aviv District Court for Family Matters has ruled in favour of a father and ordered the return to the Netherlands of two minor children, according to the Convention on the Civil Aspects of International Child Abduction, 1980 (the Convention). The parents have originally lived together with their children in Rotterdam, the Netherlands. In 2007 the parents had separated, and the mother immigrated to Israel with both children.

    The father (the Plaintiff) claimed that the mother (the Respondent) has abducted the children in the midst of a legal process set to determine custody matters, which was taking place in Rotterdam. He argued that according to article 3 of the Convention, the Respondent has violated the custodial privileges granted to him by the power of a judicial decision. On the other hand, the Respondent has argued that her actions were in accordance with Dutch domestic law, which indicates that the sole custodian of the children can decide exclusively with regards to the children's place of habitual residence. Since the parents have never been married, according to the laws of the Netherlands the Respondent is the sole custodian of the children, and can therefore decide in the matter of their habitual residence.

    The Court first determined that the children's habitual residence was in Rotterdam. The provisions of the Convention relevant to this case have been adopted into Israeli domestic legislation by articles 3 and 5 of The Hague Convention Law (the return of abducted children), 1991. The Court then examined whether the Plaintiff have had any custodial rights attributed to him, which had been breached by the actions of the Respondent in removing the children from their habitual residence.

    The Court pointed specifically to a judicial decision from April 2012 granting the Plaintiff certain visitation rights once every two weeks (until receiving a report from the child protection authorities). In addition, the court in Rotterdam has issued an order preventing the Respondent from leaving the Netherlands with the children; an order she has not received in time due to the fact that she had already immigrated to Israel with the children. Therefore, the Court concluded, it is no longer possible to argue that the Plaintiff does not have any custodial rights, for he is at the very least entitled to claim his rights to custody through a judicial procedure. The actions of the Respondent have prevented the Plaintiff from claiming those rights, and therefore constituted a breach of the rights of custody attributed to the Plaintiff, and abduction within the meaning of The Convention.

    The Court further stressed that even if the Respondent is indeed the sole custodian in accordance with Dutch law, and can therefore decide exclusively on matters of the children's habitual residence; it is nevertheless a domestic law which contradicts an international convention. The provisions of The Convention are lex specialis in such cases, and thus prevailing over domestic general legislation. The Court has then concluded that The Convention indeed applies to this case and the Respondent has failed to demonstrate that she had an exclusive right to determine in the matter of the children's habitual residence.

    The Court further rejected all other arguments raised by the Respondent, and determined that nothing in the actions taken by the Plaintiff indicates an acceptance on his part of the situation. Lastly the Court stressed that even if the Respondent is correct in stating a concern with regard to the violent character of the Plaintiff, it is a matter for the Dutch court to decide on, in its determination regarding matters of custody.




    Upcoming events and other notices

    Transitions in/to Democracy: Contemporary Changes and Challenges

    The Minerva Center for Human Rights at the Hebrew University of Jerusalem, in cooperation with Konrad-Adenauer-Stiftung, organize a second annual International Transitional Justice Conference on “Transitions in/to Democracy: Contemporary Chances and Challenges". The conference will address several aspects concerning the relations between transitional justice and democracy, and utilize the comparative experience of various societies and international experts.

    The conference will be held in Jerusalem, on 28-30 October 2012.

    For more information, click here.

    International Law Forum, Hebrew University of Jerusalem

    The International Law Forum at the Hebrew University of Jerusalem is organizing a series of meetings on different topics of international law during the upcoming semester. Each meeting will begin by a short presentation by the speaker, followed by a round-table discussion.

    On 30 October 2012 the Forum will have a panel on "The Status of the Palestinian Authority under International Law". The speakers will include Prof. Ruth Lapidoth, Adv. Sarah Weiss-Maudi -Ministry of Foreign Affairs, Prof. Yuval Shany, Prof. Robbie Sabel, and Prof. Moshe Hirsch

    On 6 November the Forum will have a discussion on "Reforms to the European Court of Human Rights". The speakers will include Prof. Alexander Morawa and Dr. Shai Dothan.

    The meetings will take place at the Hebrew University Law Faculty (room 119), on 14:30-16:00. For more information, click here.

    European Master Program in Law and Economics, University of Haifa

    The European program in Law and Economics is a one year program towards a Master in Law and Economics, where the students spend three trimesters in three different universities. The University of Haifa Law School is a full member, and is a third term university in this program. Each year the European Union allocates grants to 10 European EMLE students who study their third term in Haifa.

    For more information, click here.

    [1] Following a previous HCJ decision (from 30.1.2008 number 9132/07) determining that Gaza is no longer occupied and as a result the only obligations the State of Israel has towards the population in Gaza are the humanitarian obligations which derive from law of war.  ​