7 December 2012

1.        News                                                                                                                  2

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"

2.        Upcoming Events and Other Notices                                                               7

2.1   International Law Forum, Hebrew University of Jerusalem

2.2   Corporate Liability for Human Rights Violations

2.3   New publication: Israel Law Review

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 crime.

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 of genocide.

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. 

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 education.

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.                

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.

The relevant 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.

Three sub-tests 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 means.[1]

Regarding the 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.

Regarding the 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 preferable alternative.

Regarding the 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 near neighbourhoods.

The Court 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.

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.

For further information, click here.

For further information on ACAAs, click here.

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, click here). 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.  

For an article at the BBC, click here.  

For an article at the Gatestone Institute, click here.

For 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 legal@hague.mfa.gov.il

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.

Almost all 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.

The International 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 round-table discussion.

On 25 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.

The Minerva 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.

The conference will be held in Tel Aviv University Faculty of Law, on 16-17 December 2012. For more information, click here.

The new Israel Law Review, Volume 45 - Issue 3, November 2012 has been published.

For the table of content and full articles, click here.