During the al-Aqsa Intifada Israel adopted a new measure in "the battle against Palestinian terror." At the recommendation of the defense establishment, the Cabinet decided to forcibly transfer from the West Bank relatives of Palestinians who had killed and injured Israelis. The Fourth Geneva Convention prohibits the deportation or forcible transfer of residents of occupied territory; it also forbids collective punishment and harm to innocent persons as a means of deterrence.
For years, Israel has implemented, as part of its "war on terror," a declared policy of collective punishment against the Palestinian population. In furtherance of this policy, Israel has demolished hundreds of houses of families of Palestinians who had killed and injured, or were suspected of killing and injuring, Israelis. Israel chose this policy with the objective of punishing the people close to the assailant and to deter other Palestinians from committing similar acts. Following a number of serious attacks in Israel and in the Occupied Territories in which dozens of Israelis were killed, the Cabinet decided to increase the harm inflicted on the relatives of the Palestinian attackers. The means to achieve this end was deportation. At first, the defense establishment sought to deport them to a location outside the Occupied Territories, but the attorney general ruled that deportation violated international law. The attorney general did, however, allow transfer, with certain limitations, from the West Bank to the Gaza Strip.
On 1 August 2002, the OC Central Command signed three orders. They were issued against Intissar Ajuri, Kipah Ajuri, and Abed A-nasser Asida. The first two are siblings of Ali Ajuri, who was allegedly responsible for the attack on the central bus station in Tel-Aviv and for other attacks against Israelis. He was killed by Israeli security forces. Asida is the brother of Nasser A-din Asida, who is wanted by Israel for being responsible for several attacks, among them an attack in the Immanu'el settlement.
After the orders were issued, the three Palestinians, represented by HaMoked: Center for the Defence of the Individual and the Association for Civil Rights in Israel, filed an appeal with the Military Appeals Committee. The Committee denied their appeals. The three men then petitioned the High Court of Justice. Because the case involved "substantive questions," a nine-justice panel (rather than the usual three-justice panel) was assigned to hear the petitions. The High Court ruled that the transfer of the two Ajuri siblings was lawful.
The High Court held that the military commanders in the Occupied Territories have the authority to issue "orders for assigned residence." In reaching its decision, the High Court relied on article 78 of the Fourth Geneva Convention, which states:
If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.
The judgment discusses the question of whether this article may be used to justify "orders for assigned residence" as a means of deterrence. The High Court stated unequivocally that deterrence is not a lawful basis for the forcible relocation of innocent persons. The High Court also emphasizes that, "one may not assign the place of residence of a person who is not innocent and did carry out acts that harmed security, when in the circumstances of the case he no longer presents any danger." This prohibition applies even where the transfer would deter others from committing similar acts. The judgment states that such orders are only lawful where there is clear evidence that the person against whom the order is issued endangers state security and that the order will prevent the danger. If the element of prevention exists, considerations of deterrence may play a role in selecting the measures to be taken. The High Court emphasized that the degree of danger must be such that the failure to issue the order would raise a reasonable likelihood of actual danger to state security.
The discussion on the cases of Intissar and Kipah Ajuri, whose transfer was approved by the High Court, mentioned the allegations against them. However, these allegations related only to past acts of assisting their brother, who is now deceased. The state did not raise any argument that the two constitute a future danger, nor is the matter of future danger that they represent mentioned in the judgment. In the hearing before the Military Appeals Committee in Intissar Ajuri's case, a General Security Service agent even admitted that he would not recommend placing Ajuri in administrative detention.
At the beginning of the hearing on the deportation of the relatives, the state did not argue that the prospective deportees constitute a future danger. The High Court completely ignored this fact. The public and legal debate that revolved around the deportation of relatives of suicide bombers or persons suspected of planning attacks on Israelis did not mention the element of prevention; the entire debate revolved around the deterrent effect that would result from the harm caused to the attackers' relatives. The argument that the relatives were actively involved in harming state security was only raised at a later stage, after the hearing before the High Court had begun.
The High Court's ruling is inconsistent with international humanitarian law. Article 78 did not intend to allow the "assigned residence" of relatives of persons suspected of harming state security. According to the accepted interpretation of this article, assigned residence may only be used in exceptional circumstances, when a particular person constitutes an actual danger to the security of the occupying state, with each case being decided separately. These conditions were not met in the cases decided by the High Court.
In addition to violating article 78 of the Fourth Geneva Convention, the forcible transfer of relatives to the Gaza Strip also breaches article 49 of said convention. Article 49 prohibits the deportation of protected persons to areas outside the occupied territory or their forcible transfer within the occupied territory, except in exceptional cases in which the security of the population or imperative military reasons so demand. None of these conditions were proven in the case before the High Court. It should be noted that infringement of article 49 is considered a grave breach of the Fourth Geneva Convention; as such, it is deemed a war crime.
Punishing persons for deeds they did not commit - where the sole reason for the punishment is that they are relatives of individuals suspected of having committed crimes - constitutes collective punishment, which is prohibited by international law. This practice is part of Israel's long-standing policy of inflicting harm on innocent people, in which, for example, Israel has demolished relatives' houses and imposed extensive restrictions on Palestinian movement in the Occupied Territories.
The action taken by the state to deport the suspect's relatives to the Gaza Strip was taken without proving that they constitute a danger to state security; rather, the state's objective was to deter others from committing similar acts. Such an act is unlawful. If the petitioners indeed endanger state security, they should be indicted and tried.