7 December 2012
1.1 High Court of Justice upholds a
decision to extradite a person suspected of genocide to Bosnia and Herzegovina
1.2 High Court of Justice dismisses a
petition requesting to enforce demolition orders
1.3 Israeli court confirms security
fence route and stresses it does not reduce the obligations towards residents
of East Jerusalem
1.4 ACAA agreement between Israel and
the EU ratified
1.5 Egyptian mediation leads to Ceasefire
1.6 General Assembly resolution on
the "Status of Palestine in the United Nations"
Upcoming Events and Other Notices 7
2.1 International Law Forum, Hebrew
University of Jerusalem
2.2 Corporate Liability for Human Rights Violations
New publication: Israel Law Review
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.
High Court of Justice upholds a
decision to extradite a person suspected of genocide to Bosnia and Herzegovina (HCJ
On 29 November 2012, the High Court of Justice decided to
reject the appeal and uphold the Jerusalem District Court decision to extradite
Mr. Alexander Svetkovic (the appellant) to Bosnia and Herzegovina (BiH). The
BiH Authorities have requested the extradition for the purpose of initiating
criminal proceeding against the appellant for his alleged involvement in the
events occurring in Srebrenica in 1995.
The appellant argued two main defences before the Court. First,
the public policy
defence, arguing that (1) the prison facilities in BiH are not suitable for his
internment and cannot guarantee his personal safety; and (2) his right to fair
trial will be compromised due to some apparent differences between the two
legal systems. Second, the issue of evidentiary support, arguing that (1) the
threshold required to substantiate a charge of genocide is considerably high;
and (2) the evidence submitted with the extradition request is not sufficient to
satisfy the threshold required for extradition proceedings. The appellant
argued in particular that the mental element of genocide has not been proved.
He was not aware of any plan to exterminate the Muslim-Bosnian population, and was
not acting on the basis of such a plan.
The Court first examined article 9 of
the Extradition Law (1954). This provision determines that in order to
extradite a person, the Court must first examine if the evidentiary support
provided with a request for extradition is sufficient, in the sense that it
would have satisfied the threshold required to initiate criminal proceedings in
Israel on the same count. The Court emphasized it is not in a position to
decide the question of guilt or innocence of the accused, and therefore it is
not required to make any absolute observations with regards to the elements of
The Court then discussed the issue of
evidentiary support. With regard to the objective element, it concluded that the
event involving the actions of appellant was allegedly part of many acts of
extermination taking place at the time; acts that have been systematically
planned for the purpose of exterminating the Muslim men population in
Srebrenica. The Court indicated that although Israeli courts are not bound by
the jurisprudence of foreign courts and tribunals, the judgments and decisions
of these courts can provide useful guidance on the interpretation of the crime
Regarding the mental element of the
crime, the Court accepted the approach taken by the District Court, indicating
that the Court should examine whether the alleged perpetrator was aware that he
commits genocide, and whether he has intended for such an outcome to ensue (meaning,
the extermination of the population of Muslim men as such). The Court indicated
that for the purpose of extradition proceedings, it may apply the presumption
of intent (according to which it is assumed that the person intends to produce
the natural outcome resulting from his actions). Therefore, it is possible to
conclude that the appellant wanted the extermination of the Muslim population
in Srebrenica as such, for the purpose of extradition proceedings.
Regarding the issue of public policy,
the Court indicated that the appellant has not demonstrated that his right to
fair trial would be compromised to such a degree that would justify
interference with the District Court's decision. It further noted that any apparent
differences between the Israeli legal system and the legal system in BiH, if
they exist, do not necessarily indicate that the appellant will not be granted
a fair trial.
Regarding the physical conditions of
the prison facilities in BiH, the Court reiterated the decision by the District
Court, and stressed that the appellant should be held in a separate section of
the prison, and that the prison authorities should provide him with proper and
personal security to guarantee his safety. The Court however rejected the
appellant's argument that the State of Israel should condition his extradition
upon further guarantees from the BiH authorities, and noted that such
additional conditions would amount to interference with the legal procedure in
the requesting State.
High Court of Justice dismisses a
petition requesting to enforce demolition orders (HCJ 5665/11)
On 10 October 2012 the High Court of Justice rejected a
petition requesting to order the execution of several suspended demolition
orders issued for houses of Bedwin residents built without a permit in the vicinity
of Kfar Edomim.
The petitioners, residents of Kfar Edomim locality, argued
that in a prior decision issued by the Court, the enforcement authorities have
agreed that the houses which are the subject of the contested demolition
orders, would not be demolished yet, on account that these houses serve as a
school for the Bedwins children. The decision indicated that executing the
demolition orders during the school year would compromise the children right to
At the termination of the school year, the petitioners filed
the present petition, indicating that the enforcement authorities refuse to
execute the orders, and stressing that the buildings were built illegally
without the required permits.
The Court first stressed the need to find a permanent solution
in the form of alternative housing for the local Bedwin population. It then
reiterated the State's prior declaration, indicating that the authorities will
not enforce the orders prior to the conclusion of the school year. However,
this declaration does not necessarily mean that the State will execute the
orders immediately at the end of the school year. The decision when to execute
such orders is subject to additional considerations.
The Court then indicated that it does not incline to
interfere with policy considerations regarding law enforcement priorities,
including considerations taken in the context of the legal framework applicable
to planning and building in the region. The only exception to such
non-interference policy is when the enforcement authorities completely or
unreasonably disregard their obligation to enforce the law, or when an
extremely unreasonable or substantial error is found in these set of
priorities, in a manner that compromises their legality.
Since the State declared an intention to resolve this issue
through peaceful means and by an agreed solution, the Court found no reason to
interfere with the decision of the enforcement authorities not to execute the
demolition orders in the meantime. Moreover, the Court accepted the State's
assertion that the need to find alternative residence will be taken into
account when deciding the priorities for enforcement.
All justices sitting in the case have concurred with the
judgment, and Justice Hayut has stressed even further, in a separate concurrent
opinion, that the argument raised by the residents of Kfar Edomim - according
to which there should be symmetry in terms of the priorities set for executing
demolition orders between illegal building on private lands (as in the case of
Migron outpost) and illegal building on Public lands (as in the present case) -
is irrelevant, due to substantial differences between these situations.
Earlier in the judgment, Justice Fogelman, who wrote the
majority opinion, referred to this issue, and indicated that the military
commander in the area has an obligation to protect the property rights of
protected persons, in general, and against an unauthorized takeover, in
particular. This obligation derives from article 46 of the Hague Regulations.
Thus the suggested similarity, argued by the petitioners, between the case of
Migron (where the Court ordered to execute the demolition orders and determined
that the question of whether or not an alternative solution was found is
irrelevant), and this case (where the Court decided not to interfere with the
decision not to execute the orders yet, and accepted that an alternative agreed
solution should be found), is incorrect and therefore rejected.
Israeli court confirms security
fence route and stresses it does not reduce the obligations towards residents
of East Jerusalem (TA 2348/07)
On 28 October
2012, the Court of First Instance in Tel Aviv (sitting as an appeals committee
under the law of Emergency Property Procurement (1949)), rejected an appeal requesting
to modify an order issued for the construction of the security fence in the
area of Ras Hamis neighbourhood in East Jerusalem.
segment of the fence has been the subject of three different orders,
considering alternative routes for the fence, all of which have been
scrutinized by the security authorities to determine the best alternative
route. The petitioners, residents of Ras Hamis neighbourhood, have selected the
second alternative (the blue route) as their most preferable, indicating that
this way the fence will be built east to their houses, allowing them to remain
on the Israeli side, where the centre of their daily lives is. They further
argued that the third alternative (the red route) - against which they filed
the petition - would result in their exclusion from the Israeli side and the
separation from the centre of their lives, by building the fence to the west of
their houses and properties, thereby assigning them to the West Bank.
The State has
argued in response that the first and second alternatives have been rejected
due to security concerns, and the red route was ultimately chosen based on
several considerations, one of which being the fact that according to this
alternative, the fence will not run through private homes, thereby reducing the
unnecessary exposure of uninvolved civilians to the dangers which may arise
from hostilities. In addition, the State indicated that building the fence
within a residential area would increase the risk of damage to the adjacent
homes as a result of the construction work.
The Court first
indicated that based on previous High Court of Justice decisions - and in
particularly Beit Sourik Village Council v. The Government of Israel (HCJ
2056/04), judgment of 30 June 2004 (Beit
Sourik decision) - it has already accepted that the security fence was
built for the purpose of protecting the population of Israel against terrorist
attacks, thereby serves a legitimate reason. However, the Court then stressed
that the route of the fence should be such that proportionately balances
between the security needs of a specific location and the consequent
interference with the daily lives of local residents.
have been established in Israeli jurisprudence - mostly related to
administrative law - in order to examine proportionality in a specific case:
(1) the means used by the administrative body must rationally lead to the
realization of the objective; (2) in the spectrum of means which can be used to
achieve the objective, the least injurious means must be used; and (3) the
damage caused to the individual by the means used in order to achieve its
objectives must be of proper proportion to the gain brought about by that
first test, the Court determined that the security fence is rationally linked
to the objective it was meant to realize, since it prevents terrorists from
entering Israel through the specific location in Jerusalem where it is
designated to be built. Therefore, there exists a rational connection between
the means chosen and the legitimate objective.
second test, the Court indicated that in determining the appropriate route of
the fence, it will entail a particular weight to the expertise of the military
and defence authorities, so long as their considerations take into account the
relevant principles of proportionality. The Court stressed that the appellants
did not provide any expert opinion to confront the conclusions of the
assessment provided to the Court by the military. It therefore accepted the
assertion of the security authorities indicating the red route as the most
third test of proportionality, the Court first indicated that the appellants
are all registered residents of Jerusalem. As such, they pay their taxes to the
Jerusalem municipality and are entitled to receive all the services it
provides. However, contrary to their argument suggesting that they would be prevented
from accessing Jerusalem if the red route is chosen, the Court noted that from
the plans submitted, it appears that their access is not being prevented but
only limited. The Court acknowledged that the fence will certainly create
obstacles and interferences with the petitioners' daily lives, most notably the
need to go through specific pre-determined passages in order to get to work,
school, welfare services, etc. However, it emphasized that such difficulties
can be minimized by providing some governmental and municipal services at the
compound of the passage, thereby making it accessible to the residents of the
finally stated that the obligation to provide municipal services is not reduced
in any way as a result from the existence of a physical barrier, namely the
fence. Lastly, the court noted that a relevant consideration in deciding the
appropriate route should be the affect it has on other residents, and not just
the appellants. The red route is the least injurious means in terms of how it
affects the overall population.
ACAA agreement between Israel and
the EU ratified
On 23 October
2012 the European Parliament ratified the Agreement on Conformity Assessment and
Acceptance of industrial products, between the EU and Israel. The ACAA is an
important framework technical-commercial agreement, which recognizes Israel
industrial standards as equivalent to European standards. An appendix regarding
pharmaceutical products was added to the vote, and Israeli pharmaceutical products
can now be marketed without delay or further inspection. Additional appendixes
covering other industrial spheres will be added to the framework agreement in
the near future.
information, click here.
information on ACAAs, click here.
Egyptian mediation leads to
On 21 November, after 8 days of fighting, understandings
went into effect regarding a ceasefire between Israel and Hamas (and the other
terrorist organizations operating in the Gaza Strip). The understandings
were brokered by Egypt with US intervention. For the full terms to
the ceasefire, click here.
For responses, click here.
The current round of conflict did not begin with the
Israeli operation on Wednesday 14 November, when the Israel Defense Forces
(IDF) targeted Ahmed Jabari, the head of
Hamas military wing in the Gaza Strip. It started with an
anti-tank missile fired by Hamas the Saturday before (Nov. 10) at an army jeep
traveling on the Israeli side of the border fence. Four IDF soldiers were
injured. That attack was immediately followed by rockets targeting the civilian
population of southern Israel. Over 120 rockets had been fired in the days
before Israel launched Operation Pillar of Defense (10-14 Nov.). This
escalation was not the first in recent memory, but rather the third of the past
month. During the operation about 1,500 rockets were launched towards Israel,
some even reached Tel Aviv and Jerusalem placing nearly half the population of
Israel in harm's way. In addition to the rockets, a city bus exploded in the
center of Tel Aviv.
Over the course of Operation Pillar of Defense, the IDF
targeted over 1,500 terror sites. It is important to note that Hamas and the
other terrorist organizations hide among the civilian population of Gaza, using
them as Human Shields (see examples here, here
and here. note the
dates). Therefore, the IDF did it outmost best to avoid any civilian casualties
among Palestinians, by dispersing hundreds of thousands of leaflets; making
phone calls to more than 20,000 residents of the Gaza Strip; Diverting missiles
in mid-flight; “Roof knocking” (target a building with a loud but non-lethal
bomb that warns civilians that they are in the vicinity of a weapons cache or
other target), and Pinpoint Targeting. For an example of Israel
Air Force ensures area is clear of civilians before striking terrorists, click here. For another example of
an IDF pinpoint strike on an underground launching site near mosque, click here.
Israel disengaged completely from the
Gaza Strip in 2005, removing every community and army base in the hope that
this would improve the chances for peace. Since then, more than 5,200 Missiles,
Rockets and Mortars have been fired at Israel (to see the yearly distribution,
Most attacks were deliberately direct at the civilian population, of about a
million people. When a missile is being launched and is likely to hit
inhabitants within Israel, it automatically activates an alarm - allowing approximately
15 seconds warning before a potential hit (just for comparison purposes, the world
record in 200 meter run currently stands at 19.19 seconds).
To learn more about the rockets attacks from Gaza, click here.
All throughout operation Pillar of Defense, the border
crossings from Israel to the Gaza Strip remained open, allowing for the routine
passage of goods and humanitarian aid. For further details, click here.
For some more legal
points regarding operation Pillar of Defense, click here.
For an article at The
Huffington Post, click here.
an article at the BBC, click here.
an article at the Gatestone Institute, click here.
an article at the Times of Israel, click here.
A PDF file with some extensive
legal analysis was distributed along with this newsletter. If you didn't get it
and want to, please send an email to email@example.com
General Assembly resolution on
the "Status of Palestine in the United Nations"
On 29 November
the status of the Palestine Authority (PA) in the United Nation was changed
from that of an "Observer" to "Non Member State" (also known
as the Holy See status). This resolution passed exactly
65 years after the Partition Plan.
States who chose to explain their votes (35) stressed the importance of direct negotiations
between Israel and the PA, supporting a two state solution which will safeguard
Israel security concerns along the Palestinian right for self-determination.
Some States expressly mentioned they do not consider this vote as recognition
of a "Palestine" State. Others also indicated that the new status do
not mean that the PA could later automatically join other international bodies,
including the ICC.
To see the
speech of the Israeli Ambassador to the UN, click here.
To read it, click here.
To an article
at the Algemeiner analysing the legal implication of the decision, click here.
Upcoming events and other notices
International Law Forum,
Hebrew University of Jerusalem
Law Forum at the Hebrew University of Jerusalem is organizing a series of
meetings on different topics of international law during the academic semester.
Each meeting begins with a short presentation by a speaker, followed by a
December the Forum will invite Professor Robert Howse to discuss the question Does
International Law Require a Progressive Theory of History.
The meeting will take place at the
Hebrew University Law Faculty (room 119), on 14:30-16:00. For more information, click here.
Corporate Liability for
Human Rights Violations
Center for Human Rights in Tel Aviv University, the David Berg Foundation Institute
for Law and History, and the Foundation pour la Memoire de la Shoah, organize a
conference on the subject of Corporate Liability for Human Rights Violations.
conference will be held in Tel Aviv University Faculty of Law, on 16-17
December 2012. For more information, click here.
New publication: Israel Law
The new Israel
Law Review, Volume 45 - Issue 3, November 2012 has been published.
table of content and full articles, click here.