מארכיון בית המשפטעתירה לבית המשפט הגבוה לצדק

עדאלה- המרכז המשפטי לזכויות המיעוט הערבי בישראל נ' היועץ המש

פסק הדין בבג"ץ 3292/07 ניתן ביום 8 בדצמבר 2011.

ההכרעה, במילותיו של בית המשפט.

(See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, §90

פסק הדין ניתן ביום 8 בדצמבר 2011.

בית המשפט: בית המשפט העליון
מקרה: בג"ץ 3292/07
נפתח: 2007
ניתן: 8 בדצמבר 2011
משך: 29 עמודים

כך מצטטים את פסק הדין.

בג"ץ 3292/07 עדאלה- המרכז המשפטי לזכויות המיעוט הערבי בישראל נ' היועץ המש (8.12.2011)

הנוסח המלא של פסק הדין.

פסק-דין

The Supreme Court sitting as the High Court of Justice

HCJ 3292/ 07

Before:

The Honorable President D. Beinisch

The Honorable Justice E. Rubinstein

The Honorable Justice H. Melcer

Petitioners:

1.Adalah - the Legal Center for Arab Minority Rights 2. The Palestinian Center for Human Rights - Gaza

3.Al-Hak

Respondents:

1.Attorney General

2.Judge Advocate General

3.Shmuel Zakai

4.Dan Harel

5.Moshe Ya’alon

6.Shaul Mofaz

7.Israel Defense Forces

8.Government of Israel

Petition to grant an order nisi and an interim order

Date of hearing:

12 Iyyar 5769

(May 6, 2009)

On behalf of the Petitioners:

Hassan Jabarin, attorney at law; Orna Cohen, attorney at law

On behalf of the Respondents:

Aner Helman, attorney at law

Judgment

President D. Beinisch:

This petition deals with the decision of the judge advocate general, which was approved by the attorney general, to refrain from opening a criminal investigation following injury to civilians and destruction of homes in the Gaza Strip, which occurred during Operation Rainbow, from May 18-24, 2004, and in the course of Operation Days of Repentance from September 28, 2004 to October 16, 2004.

Factual background and course of events in the petition

1.The background to the petition before us, which was filed on April 15, 2007, lies in a period of time in which there was a difficult security situation and the activities of the Palestinian terrorist organizations were at their height. The military operations that are the subject of the petition preceded a series of murderous events that occurred in the area of the Gaza Strip in May 2004. On May 2, 2004, Tali Hatuel, who was in the late stages of pregnancy, and her 4 daughters, were murdered in a shooting attack on their car while they were driving on the Kisufim Road. On May 11, 2004, an IDF armored personnel carrier was hit by an RPG rocket and six soldiers inside it were killed. On May 12, 2004, another five soldiers were killed, also as a result of an RPG fired at the armored personnel carrier in which they rode. Two days later, on May 14, 2004, another two soldiers were killed in the same sector when they took part in an operation to locate the body parts of the dead soldiers. These heavy losses were apparently caused by weapons that were suspected of having been smuggled into the Gaza Strip through underground tunnels that had been dug beneath the Philadelphi Corridor. On that backdrop, a decision was made to launch Operation Rainbow, in which a division was sent into the southwestern neighborhoods of Rafiah for the purpose of preventing the transfer of weapons, finding wanted persons and tunnels, and preventing a repeat of the sniper fire aimed at forces moving along the Philadelphi Corridor. As explained by the State, during the operation, IDF forces encountered strong opposition by terrorists, who operated out of residential buildings throughout Rafiah.

In addition to the incidents that took place along the Philadelphi Corridor, there was a significant increase in the number of Kassam rockets that were fired from the northern Gaza Strip into Israeli territory over the course of 2004. In June 2004, a man and a four-year-old toddler were killed by a Kassam rocket that hit near a kindergarten in Sderot, and in September, two other toddlers were killed by the direct hit of a Kassam rocket on a residence in Sderot. That month, 46 Kassam Rockets were fired at Israel. The Government stated that on that basis, it had become necessary to conduct a deterrent operation in the area of the Kassam rocket launches in the northern Gaza Strip. Operation Days of Repentance, which was conducted in the northern Gaza Strip, from September 28, 2004 to October 16, 2004, was designed to reduce the scope of Kassam rocket launches at Israeli towns and to strike at the terrorist organizations behind that activity.

2.After those operations, in July 2005, the Israeli government implemented the disengagement plans from the Gaza Strip, the military government in that region ended, and the Hamas organization seized power in the Gaza Strip. In November 2005, Petitioner 1 (hereinafter: the Petitioner) requested that Respondents 1 and 2 order that a criminal investigation be opened in the matter of Operation Rainbow. About a month afterwards, the judge advocate general informed the Petitioner that its request had been denied. In May 2006, following another request by the Petitioner, the judge advocate general again informed the Petitioner of his decision not to open a criminal investigation for Operation Rainbow. On January 16, 2007, the Petitioner applied for the third time to the judge advocate general, and that time the application also included a demand to open a criminal investigation with regard to the events that took place during Operation Days of Repentance. On February 7, 2007, the judge advocate general informed the Petitioner that its request to open a criminal investigation for Operation Days of Repentance had also been denied. On April 15, 2007, this petition was filed, in which the Petitioners requested that the Court instruct the attorney general and the judge advocate general to explain why they should not order the opening of a criminal investigation for pressing criminal charges against those responsible for the deaths of civilians and the widespread destruction of civilian houses and property in the Gaza Strip during the military operations Rainbow and Days of Repentance. On May 6, 2009, we held a hearing on the petition in which we heard the arguments of the parties.

The pleadings of the parties

3.According to the Petitioners, the Respondents - or anyone acting on their behalf - blatantly violated the laws of human rights and international humanitarian law by launching Operations Rainbow and Days of Repentance, and that they committed, in the framework of the events that took place during those operations, acts that constitute criminal offenses under both international law and the Penal Law, 5737-1977. Therefore, the Petitioners argue, Respondents 1 and 2 are obligated to order the opening of a criminal investigation for the events that took place during the two said military operations. The Petitioners argue, inter alia, that the right to life and the right to bodily integrity were violated; that widespread destruction of civilian houses and structures was committed; that the prohibition on reprisals against civilians and civilian structures was violated; and that during the military operations, the cautionary means necessary for protecting the civilian population, which happened to be in the area of the fighting, were not implemented. According to the Petitioners, they based these claims on the public utterances of IDF soldiers and commanders after the end of the fighting but, primarily, on reports by newspapers that surveyed the situation and the results in the Gaza Strip after the operations. The Petitioners argue that such extensive destruction could not be the result of legal activity that meets the requirements of the law. The Petitioners also based their arguments on reports by international organizations and statements by international bodies that criticized the conduct of the IDF in the operations.

4.In their response to the Petitioners’ pleadings, Respondents 1-2 and 7-8 (hereinafter jointly: the State or the Respondents) argued that the petition should be denied in limine since it was tainted by generality and because it was filed after great delay. According to the State, this is a petition that aims to order the opening of a criminal investigation for two military operations that were conducted in 2004 - over two and a half years before the petition was filed. It was argued that the Petitioner first contacted Respondents 1 and 2 in the matter of Operation Rainbow only in November 2005 - a year and a half after the operation - and that already in December 2005 - over a year before the filing of the petition - Respondent 2 informed Petitioner 1 that its request to open a criminal investigation in the matter of Operation Rainbow was denied. With regard to Operation Days of Repentance, the Petitioner first contacted the Respondents in January 2007 - over two years after the end of the operation. According to the Respondents, this delay is exacerbated by the complexity of the large-scale military operations that are the subject of the petition: the lack of any basis for individual suspicion: and implementation of the disengagement plans and departure of IDF forces from the Gaza Strip, which now makes it difficult, if not impossible, to conduct an effective investigation in that area. The Respondents further argue that the Petitioners are attempting to order the opening of an investigation against the former minister of defense, the former chief of general staff and other senior officers, for their responsibility for the results of two complex and dangerous operations that extended over more than 24 days in total, and which took place over a large area in the Gaza Strip - and all of that on the basis of general descriptions that rely mainly on newspaper reports which do not constitute a proper factual basis for obtaining relief from the court. Additionally, the Respondents claim that the issue of the destruction of houses in the course of fighting has already been adjudicated in HCJ 4694/04 Abu Atara v. Commander of IDF Forces in the Gaza Strip (May 18, 2004, hereinafter: the Abu Atara Case) and HCJ 4969/04 Adalah v. GOC Southern Command (July 13, 2005, hereinafter: the Adalah Case). In the Abu Atara Case, the Court dismissed a petition in which it was asked to order cessation of the demolition of buildings in the area of the Gaza Strip. In the Adalah Case, a petition in principle on the legality of demolishing houses in the framework of a military operation was dismissed. According to the Respondents, dismissal of the petitions indicates that the Court had accepted the position of the State whereby, in general, the demolition of houses in the framework of the fighting in the Gaza Strip does not constitute a “war crime,” as claimed by the Petitioners, and insofar as this petition deals with the issue of demolishing houses, it should be dismissed in limine in view of the existence of a judicial decision in the matter.

In essence, in their response, the Respondents argued that the Court’s intervention in the discretion of the attorney general and the judge advocate general with regard to opening a criminal investigation is extremely limited. In this matter, it was argued that in the absence of a factual basis for claims regarding criminal suspicions, in view of the special characteristics of the fight against terrorism and the complexity of the military operations that were the subject of the petition, and since, at the end of the operations, the IDF conducted operational inquiries at the various levels of command, there is no cause for intervening in the discretion of the competent entities.

Deliberation and decision

5.This petition clearly presents the substantive rationales behind procedural law. Thus, from among three threshold causes presented by the Respondents, two do not enable us to conduct an in-depth deliberation of the issues raised in the petition, and especially not to grant the remedy requested therein. The Petitioners argued that it is not proper that a petition dealing with the rule of law should be dismissed because of threshold arguments. While the Court has said more than once that threshold arguments per se would not constitute cause for dismissing a petition that raises substantive questions, in the case before us, the cause for dismissal is not only threshold arguments, but, rather, the fact that they touch upon the essence of the matter.

6.First, we should state that the generality of the petition is to its detriment. As stated, in the Petition, we were asked to grant relief directed at the attorney general and the judge advocate general, whereby they are requested to explain why they should not order a criminal investigation for the purpose of pressing criminal charges against those responsible for the deaths of many civilians and the extensive destruction of civilian houses and property in the southern Gaza Strip during Operation Rainbow, and in the northern Gaza Strip during Operation Days of Repentance. As stated, these operations took twenty four days, during which there were many exchanges of fire and incidents. The Petitioners claim in their petition that in their opinion, the Respondents - senior officers in the security forces, from the commander of the Gaza division during the operations, through the GOC Southern Command and the Chief of General Staff, to the minister of defense, the IDF and the government of Israel - are responsible for the results of the operations, which, the Petitioners claim, “cannot be described as anything other than war crimes” (section 7 of the petition). The petition, in accordance with this perception of the Petitioners, does not specify individual cases in which criminal offenses were allegedly committed but, rather, complains about the harm, per se, to civilians and civilian objectives in the course of the two operations. The question that it raises is whether the State of Israel should be obligated to open a criminal investigation pertaining to the implementation of the operations as a whole, when, according to counsel for the Petitioners, the specific actions serve only as indications of the modus operand i that was employed during the operations.

Therefore, we are dealing with a remedy that is formulated in the broadest and most general language. In this context, we have already stated in the past that “the generality of the petition - in defining the dispute, in the factual basis that it lays and in the requested remedies - is to its detriment, and, as such, it cannot be adjudicated by this court in its existing format” (HCJ 7178/08 Forum of the Heads of the Druse and Circassian Councils in Israel et al. v. Government of Israel (November 18, 2009)).

7.We should further state, that we did not see fit to accept the argument that the operations - in general - constituted an action that was not justified from a security standpoint and, therefore, constitute a war crime per se. As we described at the beginning, the situation in the Gaza Strip prior to the launching of Operation Rainbow enabled the terrorist entities to strike again and again at IDF soldiers and civilians living in the region, with weapons that had been smuggled into the region through tunnels. This attack by the terrorist entities, which continued to escalate, and the use of increasingly dangerous weapons, are what led to the launching of the operations. We have not been convinced - and the Petitioners have also not laid a factual foundation for this far-reaching claim, except for one newspaper interview - that the purpose of the operation was reprisal or collective deterrence for the civilian population in Gaza to refrain from cooperating with the terrorist entities. Clearly, justifications of this type for military actions are invalid but, as stated, in the circumstances of the matter, it was not proven that they were the basis for launching the operations. To the contrary - the State argues that it deemed itself obligated to protect its residents against harm and against the murder of women and children, and it acted out of recognition of its right to self-defense, which includes defending its citizens. Thus, it also considered itself obligated to defend the residents living in towns adjacent to the Gaza Strip against the Kassam rockets and other missiles that were aimed at them from the northern Gaza Strip and, to that end, it saw an operational need to strike at the terrorist entities that were using those missiles, and at their weapons and launching sites. The decision which determined that there was a security need for implementing a massive operational action in an attempt to destroy - or at least to reduce - the activities of the terrorist entities in the southern Gaza Strip and their access to advanced weapons that were smuggled through the tunnels into the Gaza Strip for use by the terrorist organizations, is a matter of security policy, which is within the clear discretion of those responsible for security, and is not a matter suitable for review by this court.

8.The remedy sought by the petition is to conduct a criminal investigation. Under the circumstances and with the data before us, the use of criminal law is not appropriate and does not contend with the problematic nature of this issue, for reasons related to the nature of criminal law. First, the remedy of pressing criminal charges is a relevant remedy in Israel with regard to cases in which there is a suspicion that an offense has been committed. The suspicion of violation of the law to the point of an offense cannot be disconnected from the protections available under the penal laws with regard to actions in warfare and this question is, of course, a complex one and based on individual clarification. A demand to conduct a criminal investigation requires a suitable prima facie foundation. It should be emphasized that criminal investigation is not the only tool through which violations of the law can be clarified, when they do not amount to criminal offenses. Our system also offers other means of examination and review, which enable us to contend with large-scale events, or with examining the policy of deploying the defense forces. Second, criminal law in Israel is delineated into the realms of the penal laws and criminal investigations adapted to the offenses under the penal laws and not necessarily related to violations of other norms that are not part of the positive law. According to various laws, military or government activities that are not necessarily criminal can be investigated and examined and they can even be criticized and operative recommendations that are not anchored, ab initio, in criminal law can also be made, even though, they can sometimes lead to conclusions about violations of the penal laws.

Thus, for example, section 537 of the Military Jurisdiction Law, 5715-1955 states that the minister of defense or the chief of general staff may appoint a commission of inquiry to investigate any matter pertaining to the military, and the Commissions of Inquiry Law, 5729-1968 states that, in cases in which the government sees that there is a matter of public importance requiring clarification, it may also order the establishment of a commission of inquiry (id. section 1). Section 28 of this law also anchors the government’s authority to establish examination committees for clarifying issues that it does not necessarily consider appropriate for clarification by means of a state commission of inquiry (in this matter, see HCJ 6001/97 Amitay - Citizens for Proper Government and Integrity v. Prime Minister (October 22, 1997)). Various types of commissions of inquiry and examination were established in the past when claims were made about events whose results obligated clarification and the examination of issues of public interest, among which, of course, have been military and combat actions. Indeed, the common perception in our system is that commissions of inquiry do not only deal with “legal” responsibility but, rather, with “public” responsibility and, in certain cases, they may only be one stage on the road to a decision about whether criminal proceedings should be initiated. At times, a problem may even arise regarding events that may ascribe criminal liability by a commission of inquiry instead of, or before, a criminal proceeding (Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel (5765, Edition 6), 1033-1034 (hereinafter: Rubinstein and Medina).

9.We would like to emphasize that the decision about whether a certain matter raises a suspicion that justifies a criminal investigation belongs, first and foremost, to those who head the prosecution system, who have the authority and the power to press criminal charges for the commission of a criminal offense. As a rule, the attorney general is in charge of the investigative and criminal prosecution system, and the judge advocate general has broad discretion in matters pertaining to the military. When the issue of the examination is, first and foremost, of an operational nature, the decision about the mechanism of the investigation is usually in the hands of military entities, but the tool of examination by the military system cannot prevent additional investigations according to the nature of the matter in question. In this matter we must distinguish as far as possible between an investigation that is designed in advance to reach a criminal or civil legal result, and other issues that require examination as to public or individual responsibility and accountability. When this involves an investigation in which the dominant aspect requiring examination is public, the political echelons may decide on the examination. However, in certain situations our case law has recognized the fact that the authority to establish a commission of inquiry or examination for a particular matter is liable to become an obligation (Rubinstein and Medina, at p. 1037). However, these are unusual cases (HCJ 7232/01 Yusuf v. State of Israel, IsrSC 57 (5) 561, 573 (2003)). As a rule, the discretion granted to the investigation and prosecution entities with regard to the establishment of a commission of examination or inquiry in general, and with regard to the selection of a particular type of examination mechanism in particular, is extremely broad, and the judicial review of a decision of that type is limited and restricted to an examination of the feasibility of the choice (HCJ 2624/97 Yedid Ronel Attorney at Law v. Government of Israel, IsrSC 51(3) 71, 79 (1997); HCJ 6728/06 Ometz Association and Citizens for Proper Government and Integrity v. Prime Minister of Israel (November 30, 2006) (hereinafter: the Ometz Case), the judgment of Justice Hayut, paragraph 3).

Above and beyond the necessity, we will say that this Court exercises its judicial review with a view to the investigative entities and the laws that our legal system makes available, and the Petitioners are also focusing their petition on the demand to make use of only the criminal tool. The issue of adapting the investigation and examination mechanisms that exist within the Israeli legal system with regard to alleged violations of the laws of war and the obligations imposed on Israel according to international law, which are external to the criminal law and the positive law, are the subject of various discussions in the international arena, and not only in relation to Israel. This issue is also at the center of academic writing, which takes various positions on the independence of the mechanisms in our system for investigating and examining claims about violations of the laws of war and their ability to examine the alleged violations (see Amichai Cohen and Yuval Shani, The IDF Investigates Itself: Investigating Suspicions of Violations of the Rules of Warfare, Policy Study 93, the Israel Democracy Institute (2011) (hereinafter: Cohen and Shani)). That is not the question before us and we do not need to address it since, before us, as stated, is a petition to apply criminal law, and it does not lay the foundation for establishing the arguments. We have also addressed the fact that the question in principle about the suitability of the investigation mechanisms to the claims and complaints made about violation of the laws of war must be examined by the Public Commission to Examine the Maritime Incident of May 31, 2010, headed by Justice Emeritus J. Tirkel, which is still looking into the matter.

10.In addition, the remedy requested by the Petitioners is not practical, as stated, for another reason. The Petitioners demand that a criminal investigation be opened and that those responsible for the “crimes,” whom they ostensibly indicate, be tried in a criminal proceeding. They do so on the basis of alleged violations of international humanitarian law, from which, they claim, violations of Israeli criminal law can be deduced (sections 174 and 178 of the Petition). Indeed, in our legal system, charges based on Israeli law are filed with the military and civil courts in the appropriate cases. In cases in which the laws of war have been violated, charges will be filed pursuant to Israeli law and for a suitable criminal offense, which, as a rule, according to its principles, also parallels the principles of international criminal law. In cases of this type, the plaintiff must establish the foundations of the specific offenses just as in any other criminal trial. It is important to clarify that this policy of Israel, according to which the international law, when it stands alone, is not part of Israeli criminal law, does not violate Israel’s obligations under the Geneva Convention since it enables the imposition of effective criminal sanctions for violators of substantive sections of the Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949) (hereinafter: the Geneva Convention), section 146; and see HCJ 7195/08 Abu Rahma v. Judge Advocate General (July 1, 2009) (hereinafter the Abu Rahma Case) paragraphs 35-44; Ward Ferdinandusse, The Prosecution of Grave Breaches in National Courts, J Int’l Criminal Justice 7 (4) (2009) 723-729, 741). This is the case when the charges express the criminal nature of the act ascribed to the accused and the punishment imposed in the event of conviction reflects the aggravated circumstances of committing the offense against protected civilians under the rules of warfare (Knut Dörmann and Robin Gei β, The Implementation of Grave Breaches into Domestic Legal Orders, J Int'l Criminal Justice 7(4) (2009) 703-721, 710). Moreover, various scholars argue that there are clear advantages to choosing to handle war crimes in the existing local criminal system (in contrast to legislating new war crimes offenses, or assimilating the laws of war into the local legal system verbatim), such as the familiarity of the prosecution entities with the fundamentals of the offense and, accordingly, their heightened ability to conduct an effective trial in such cases (id., at p. 709).

11.Aside from the aforementioned problems, even in specific aspects pertaining to events that occurred in the course of the operations discussed in the petition, the Petitioners do not establish a cause for attacking the decision not to open a criminal investigation dealing with any specific event. The petition, as stated, is based on newspaper interviews and reports, which cannot serve as evidence in a criminal proceeding, and on the reports of international organizations that deal primarily with examining the results of the events and not with analyzing the occurrences, the threats and the responses of security forces during the operations. This meager evidentiary foundation cannot form the basis of a criminal charge, at the high level of proof required for a trial of this type. The petition itself relates to dozens if not hundreds of incidents in which the results were the destruction of the homes of Palestinian civilians, and more than a few cases that resulted in the deaths of civilians who were not involved in the fighting. Even the Petitioners themselves are not claiming that every house that was demolished among the hundreds of houses was the result of a criminal act. It is worth emphasizing that even according to the norms of international humanitarian law, the obligation to investigate itself, which arises in cases of a suspected violation of the law as set forth below, does not arise when complaints are not based on an initial factual foundation, at least a prima facie foundation. Below, the learned Michael Schmitt explains that:

Not every allegation requires an investigation; only those sufficiently credible to reasonably merit one do (Michael N. Schmitt, Investigating Violations of International Law in Armed Conflict, Harvard National Security Journal 2, 31 (2011), 39).

12.With regard to specific events that ostensibly raise concrete suspicions of criminal offenses, even the State does not dispute the obligation to investigate suspected violations of the law. This obligation is derived directly from Israel’s obligation to defend the lives of the protected civilians in territories under belligerent occupation, against intentional harm, and it is also anchored in the provisions of international humanitarian law, e.g., in section 146 of the Geneva Convention. There are those who claim that this is also required by the Human Rights Conventions (see, for example, Cohen and Shani, at pp. 22-24). However, the parties before us are divided on the question of what is the indication for establishing a suspicion that justifies opening a criminal investigation with regard to a certain event. While the Petitioners claim that the actual result - the deaths of civilians and the destruction of many houses - should lead to the opening of a criminal investigation, the Respondents argue that the circumstances of every incident should be examined individually and a determination should be made about whether there is a suspected violation of the laws of war and Israeli law in that matter.

The question of whether a criminal investigation should be opened automatically in every case in which the death of a civilian resulted from operations by security forces, was dealt with in a parallel petition, that was filed with this court on this issue, HCJ 9594/03 Betzelem v. Judge Advocate General (August 21, 2011), and we do not see fit to elaborate on this here. In brief, we will explain that, in any case, the opening of a criminal investigation is not an automatic process. It must arise from a real suspicion that criminal violations were, indeed, committed. The picture that is formed from a description of the fighting in a situation of armed conflict between a murderous terrorist organization, whose operatives took shelter among the civilian population, is certainly a harsh picture, and the results of the fighting were painful for the civilian population in whose vicinity or among whose houses the terrorists operated. However, even that harsh general picture does not constitute, per se, cause for an investigation of a criminal nature. An investigation of that type must be conducted when a suspicion ostensibly arises regarding conduct that deviates from Israeli law or serious violations of international law that are tantamount to criminal offenses under the penal laws.

13.We must recall that the laws of war, which apply to armed conflicts between Israeli security forces and the terrorist organizations that control the Gaza Strip, provide protection to civilians who are not involved in the fighting and the “principal of distinction” - which imposes on the fighting army the obligation to refrain from intentionally harming the civilian population - is a basic principle of those laws. However, along with the principle of distinction, the laws of war also recognize the existence of “collateral damage” - damage caused to civilians indirectly, as a result of an attack aimed at the military targets of the enemy. The collateral damage derives from the understanding that the requirement to refrain completely from harming civilians during combat would nullify the ability to fight in the modern era, and it does not constitute a violation of the laws of war, even if it is anticipated, as long as it meets the requirements of the law, among which are the requirements of proportionality of the anticipated harm that would be caused to the civilians in proportion to the benefit anticipated from the military action, and refraining from intentional attack on civilians. Unfortunately, no one disputes the fact that during the fighting, innocent people may also be harmed. This is particularly true in modern day wars, in which boundaries are blurred between the front and the rear, between military objectives and civilian objectives, and between innocent civilians and those involved in terrorism and armed conflict. In the matter at hand, combat actions are often implemented - for lack of choice - in the midst of civilian neighborhoods, from which and from within which the terrorist organizations operate. In such situations, the army must make every effort to refrain from harming innocent civilians. Nevertheless, sometimes harm to the civilian population cannot be avoided completely. We must not forget that the fighting occurs in conditions of pressure and uncertainty, while risking the lives of the soldiers. Intensive combat is sometimes conducted against armed terrorists who operate knowingly and intentionally from within the civilian population. This combat activity is sometimes also required by the laws of human rights, which charge the State of Israel with the obligation to protect its citizens and residents against terrorist attacks that endanger their lives. Therefore, the fact that citizens were harmed is not sufficient to establish a real suspicion that criminal offenses were committed following violations of the laws of war. In the absence of evidence that criminal offenses were committed, there is also no obligation to conduct a criminal investigation of the events.

The State’s notice in response to the Petition states that when there is doubt as to whether the conduct that caused the harm to the civilians was within the boundaries of the law, the chief advocate general utilizes a preliminary factual examination that is conducted by means of an operational investigation, which is submitted to him for examination. The operational investigation also has other purposes, among which are examination of the conduct of the forces and the lessons learned for the purpose of refraining from serious consequences in the future – even if the latter did not actually stem from criminal behavior by the combat forces – and for additional internal operational needs. The questions about the independence of this examination mechanism and its suitability for establishing the foundation of data used by the judge advocate general in the initial decision about whether to open a criminal investigation, are not before us in this petition because, as stated, no concrete cases were presented to us in which there was, indeed, a suspected violation of criminal law. Even with regard to specific events that were presented, incidentally, in the petition by means of newspaper reports, the manner in which they were handled by the security forces was not clarified, and the Petitioners did not present any arguments regarding their initial handling by means of an operational investigation. Moreover, even the State agrees that when a suspicion does, indeed, arise about criminal behavior, the operational investigation is not sufficient to fulfill the obligation to investigate violations of the law. It is worth noting in this context that the reporting and factual examination procedures used by the judge advocate general to make decisions have undergone changes in recent years and a preliminary report is now submitted to the judge advocate general himself within 48 hours from time that harm was caused to any civilian who was not involved in the fighting. This report enables effective and immediate handling of the incident, either by means of a criminal investigation or by means of examination and learning other lessons.

14.We would like to add that we have also not seen fit to intervene in the decision regarding an individual incident, which was presented in the petition as an example of the general argument regarding the conduct of the security forces, an incident in which civilians were killed by the firing of tank artillery at an abandoned house, toward which a procession of Palestinian civilians was moving. The detailed position of the State in this context indicates that the incident was investigated at all levels of the Army and the briefings were submitted for the perusal of the judge advocate general, who found that the commander of the squadron made a professional mistake with regard to the scope of the shooting, but the decision about actually implementing the shooting was justified in the conditions that existed in the field. The judge advocate general determined that the mistake was made during the fighting and under conditions of pressure and uncertainty, and that the intention of the squadron commander was actually to prevent casualties. He therefore reached the conclusion, which was approved by the attorney general, that the erroneous decision of the squadron commander was not unreasonable to the point of justifying instituting criminal proceedings against him. Above and beyond the requirement, we would like to clarify that conditions of pressure and combat situations do not justify - per se - the shooting of artillery shells at civilians, but the details of the investigation that was conducted and the gamut of circumstances that led to the judge advocate general’s conclusion in that matter, were not before us. As we know, the principal of maximum restraint in a judicial intervention in the decisions of the executive authority regarding investigation and pressing criminal charges is deeply rooted in the judicial tradition of this Court. Similar to the attorney general, the discretion given to the judge advocate general on the question of whether to order the opening of criminal proceedings is extremely broad. Among other things, he must act fairly, honestly and in good faith; he must act reasonably and proportionally: he must take into account the relevant considerations and only those considerations; he must refrain from any invalid discrimination; and he must exhibit independence in his decision, as the person responsible for the rule of law in the military (the Abu Rahma Case, paragraph 66). Accordingly, intervention in the professional decisions of the judge advocate general is implemented only rarely, in extremely exceptional circumstances (HCJ 425/89 Zufan v. judge advocate general, IsrSC 43 (4) 718, 727-728 (1989); HCJ 4550/94 Isha v. Attorney General IsrSC 49 (5) 859, 871-872 (1995)). Parenthetically, we should note that, as a rule, the decision to terminate the handling of an incident as a criminal matter does not obviate other handling - disciplinary, systemic or educational - of an incident that had grave consequences.

15.Another issue that nullifies the ability to examine the decisions of the judge advocate general, both with regard to the specific incident set forth above and with regard to the other incidents that occurred during the two operations - even if the Petitioners had provided substantiated claims for specific incidents - is the amount of time that has passed from the occurrence of the events requiring examination to the exercise of the judicial review by us, i.e., the great delay that mars the petition. As stated above, the Petitioner first contacted Respondents 1 and 2 with a request to order a criminal investigation following Operation Rainbow in November 2005, about a year and a half after the end of the operation. The request to investigate the events of Operation Days of Repentance was first filed by the Petitioner only in January 2007, over two years after the end of that operation. The petition itself was filed about sixteen months after the Petitioner received a response from Respondent 2 denying the request, and almost three years after the events.

According to case law, accepting the argument of delay, which is claimed against an administrative petition, requires the existence of two cumulative elements - one, the existence of a subjective delay, i.e., does the actual conduct of the Petitioner indicate an implied waiver on its part of its right to apply to the courts; and two, the existence of an objective delay, i.e., did a change occur in the actual situation on the ground and did the delay in filing the petition harm the interests of other parties. In this case, there was, indeed, both a subjective and an objective delay, when the Petitioners asked the Respondents to open a criminal investigation for events that occurred in the course of Operation Rainbow, about a year and a half after the end of the operation. The petition itself was also filed a long time - over a year - after receipt of the Respondents’ reply, and that delay was not explained by the Petitioners. Moreover, the Petitioners first contacted the Respondents with a request to try those responsible for Operation Rainbow in November 2005 - several months after implementation of the disengagement plan, during which the IDF left the Gaza strip.

The Petitioners argue, and there is ostensibly substance to the general argument, that the claim of delay should not be allowed when it involves upholding the rule of law and violation of human rights. This is particularly true where the obligation to investigate was that of the Respondents, even without the request of the Petitioners, and without any obligatory connection to the filing of the petition. In principle, we accept this approach, and it is anchored in the case law of this Court. Indeed, the accepted law in our judgments is that the Court will not dismiss a petition because of a delay, if that means that it would result in a grave violation of the rule of law and an important public interest (HCJ 7053/96 Amcor Ltd. v. Minister of the Interior, IsrSC53 (1) 193, 202 (1999); HCJ 170/87 Asulin v. Mayor of Kiryat Gat, IsrSC 42 (1) 678, 684 (1988)). Above and beyond the requirement, we will say that when such apprehensions arise, and even with those that are less grave, we must not wait for applications by human rights organizations, journalists or other entities in order to open an examination of the event, in a manner that would enable, should it be necessary, the implementation of an effective criminal proceeding. Thus, we have already stated in a series of judgments that in cases that raise a suspicion of criminal conduct, an investigation should be opened soon after the event, to allow for gathering of evidence (see, for example, HCJ 8517/07 Bassam Aramin v. Attorney General (July 10, 2011)).

However, in the case before us, we are not dealing with delay in its regular guise as a threshold argument but, rather, a delay that negates the ability to address the petition. The lengthy period of time that passed from the end of the combat operations, which are the subject of the petition, to the time of the actual filing of the petition, affects the possibility of giving the Petitioners the remedy requested therein, even if the petition had provided a cause that could be allowed. The more time that passes from implementation of the fighting in a military arena, the greater the difficulty in gathering evidence, taking testimony and producing factual findings that might constitute a sufficient evidentiary and factual foundation for a disciplinary or criminal proceeding. The arena of the event changes, some of the witnesses are no longer available for questioning and accessibility to the area may change, as actually occurred in the circumstances of the matter before us. It can be said that the request for the remedy of a criminal investigation, or instituting criminal proceedings, always brings up for discussion the interest of enforcing the law in its strongest sense but, on the other hand, it is a request with an “expiration date.” When time passes from an event that is the subject of a request of this type, there is no longer any point to the request, while other non-criminal remedies may be relevant in appropriate circumstances. In this case, as a year and a half passed between the operations and the Petitioners’ request to Respondent 2 that he open a criminal investigation immediately, and certainly as almost three years have passed between the time the events took place and the filing of the petition before us, the remedy of opening a criminal investigation is no longer applicable in any case. This fact is sharpened by the absence of a factual basis that could have served as the basis for a criminal investigation. This issue strengthens the sense that the petition is not about an operative remedy but, rather, a declarative remedy and nothing more. In another matter, this Court stated the following with regard to a declarative remedy:

…such a declaration, which states the obvious, is completely superfluous. Do the respondents claim that they are exempt from the burden of the law? Do the respondents believe that a declaration by the courts, to the effect that the law must be upheld, will add validity or weight to the law? The court does not give such declarations for which there is no need, and which have no benefit or dignity (HCJ 1901/94 MK Uzi Landau v. Jerusalem Municipality 48 (4) 403, 412 (1994) (hereinafter: the Landau Case))

In summary, for this issue in general it can be said that to the balance between the three different elements of the delay, among which are the extent of harm to the interests of individuals who relied on a given situation and the extent of harm to the values of the rule of law (Administrative Petition Appeal 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature, IsrSC 56 (3) 673, 679 (2002)) must be added the ability to grant the requested remedy which, in effect, is also a general public interest, that this Court will not grant remedies that cannot be exercised. Therefore, in certain cases, the delay becomes a reason to dismiss the petition, even in cases that deal with substantive issues, because cases of this type on these issues can only be handled in a partial and incomplete manner, due to the amount of time that has passed and the change in circumstances.

The existence of a judicial decision in the matter

16.Finally, the State argues that the issue of demolishing houses in the course of the fighting has already been adjudicated in the Abu Atara Case and in the Adalah Case, and the dismissal of those petitions shows that the State’s position, whereby, as a rule, the demolition of houses in the framework of warfare in the Gaza Strip does not constitute a “war crime,” has already been accepted by the Court. This argument does not reflect the content of the aforementioned judgments. In the Adalah Case, the petition was dismissed because of notice by the Respondents, that the State intended to refrain from demolishing the houses. Due to that notice, we found that the petition had become theoretical and that under those circumstances, “a decision on arguments in principle by the Petitioners is not currently required” (in paragraph 5 of the judgment). A similar decision was also rendered in the Abu Atara Case. In that matter, the State declared that if a decision should be made in the future on the demolition of additional structures, that decision would not be implemented without granting the right to a hearing to all parties liable to be harmed by it, with three exceptions - immediate operational needs, danger to the lives of the soldiers or sabotage of the operation. In its judgment, the Court emphasized that:

We would like to assume that the respondents are aware of the gravity of the responsibility placed on their shoulders and that they are making every effort to reduce, as far as possible, the extent of the harm done to the general civilian population and the extent of its suffering.

In view of that stated, it is clear that the judgments mentioned by the State in this context have not established any case law but, rather, related to the issue in accordance with the situation and the factual representation at that time, and the principles presented by the State in its declaration to the Court. In this matter, the Petitioners are not making a general claim with regard to the authority of the military commander to demolish houses for security reasons. They argue that this authority was exercised unlawfully, in a manner that justifies the opening of an investigation. Therefore, in the aforementioned judgments, general immunity was not given to the demolition of any house at all, but the Court recognized the fact that when the house serves as a base for shooting at the State of Israel and terrorist activities are being conducted within it, or it is being used as shelter for a terrorist squad, its demolition, even without the right to a hearing, may constitute a legal and justified act. When a house serves as the residence of innocent civilians, under certain circumstances, its demolition is prohibited even during combat, all in accordance with the circumstances of each and every matter, taking into consideration the conditions, the needs and the situation prevailing at the scene.

Before concluding

17.For reasons we have specified, we do not see that the petition has established a cause for our intervention in the decision not to conduct a criminal investigation, as requested by the Petitioners. The delay in filing the petition, its generality and its reliance on partial information should emphasize the fact that the legal tool is a less suitable tool for achieving the goals of the Petitioners in this matter, whatever they may be. To the essence of the matter, the fight against terrorism is a difficult fight, which poses difficult dilemmas for the combat forces and the defense leadership, with regard to avoiding harming civilians when murderous actions come from among them. The grave, blood-soaked events that preceded the operations, demonstrates the difficulty involved in making decisions about combat actions and their results. It certainly cannot be said that launching two operations and all the actions that were taken during those operations establish a prima facie suspicion of criminal offenses, as indicated by the arguments in the petition. Moreover, as we have explained above, the decision by the attorney general or by the judge advocate general with regard to pressing charges was made in light of an isolated incident, and that is also how the judicial review on decisions of this type is implemented. Indeed,

If the petitioners leave this court with empty hands, it is only because they took the wrong path, and therefore did not reach their objective. There are those who say that this court is the last refuge of the citizen in his altercation with the government. But in contrast, there are those who apply to this court in order to settle such an argument, as the first step on the path, even before applying to the government itself. And there are also those who come to the court, not in order to settle the argument, with the knowledge that the case is not suitable at all for judicial decision and, therefore, there is also no basis for assuming that the court will grant them relief (the Landau Case, at p. 418).

The sweeping petition and the grave claims made therein do not lay a proper factual or legal foundation for a practical and concrete deliberation. It mixes legal claims and claims that belong, perhaps, in a publicist public discourse, and not in a legal proceeding. It appears ostensibly to be an attempt to utilize the Court in a debate which seemingly should not be planted in that field.

18.In this context, it should be noted that, for its own reasons, the Petitioner also saw fit to refer extensively in its arguments to the principle of universal jurisdiction. This principle does not pertain to proceedings that are held before this Court nor does it have any relevance to a proceeding that is conducted before us, and claims of that type, according to the manner of their wording, are in the nature of a veiled “threat” for the Respondents and even the Court, and it would have been better if the Petitioner had not chosen to bring that argument before us.

19.The reality in which we live is dynamic and changing and it seems that the day is still far off when the fighting will end completely. Unfortunately, the armed conflict between the State of Israel and the Palestinian terrorist organizations claims many victims from among the civilian population on both sides, and there is no end in sight. In combat situations, just as in calmer times, the security forces are obligated to refrain, as far as possible, from harming innocent people who are caught up in the fighting through no fault of their own, under both Israeli and international law, and under basic principles of humanity. However, tragically, during the fighting and due to the manner of the fighting conducted by the terrorist organizations, innocent people may be hurt, even when the IDF operates properly. Contending with such tragedies does not necessarily lead to - nor should it always lead to - a criminal trial. We believe that we must emphasize yet again - and the State has not disputed this - that when there is a suspected deviation from the proper norms of behavior, even if there is no reason for a criminal trial, the investigating entities must conduct an examination of the incident with the appropriate tools for that purpose, in order to deter the same kind of harm in the future, to instill an educational message in the fighting forces, to maintain the legal and moral criteria, and to demonstrate the importance of maintaining the rule of law.

Conclusion

In view of everything stated above, the petition is dismissed. Only due to the importance of the material with which the petition deals, we have not seen fit to grant an order for costs.

The president

Justice E. Rubinstein

A. I concur with everything stated by my colleague the president, from beginning to end, and even though any addition would only detract, I would like to add some brief words of my own.

B. The State of Israel is in a constant struggle against cruel terrorism, which is part of the saga that takes on the form and removes the form of a struggle against those who have tried to destroy it in every generation, including this one. This petition, which is 135 pages long, contains no legal reference to this struggle of the State of Israel against ignominious and nefarious people who do not deserve the description of human beings, who do not hesitate to slaughter its citizens in buses, cafes and on Passover at the seder table, at bus stations and in any possible place, including in a serene family home on a Sabbath or holiday, and to launch missiles at Sderot and the villages around Gaza for years, with the aim of hurting civilians and only civilians. I am not even talking about empathy - although the reader of the petition might believe that the matter involved intentional harm to people sitting “tranquil and unsuspecting, with no one in the land to molest them…and had no dealings with anybody” (Judges 18:7). What is hiding behind the learned legal cover with innumerable citations? And the question is whether its true purpose is not the delegitimization of the State of Israel, with the “threat” to which my colleague referred about the exercise of “universal jurisdiction". It is true that we are not in a bubble in which there is only one side at which are aimed the arrows of the petition, the State of Israel and its soldiers - and there is no other side or sides whose hands are covered in blood, who do not act according the humanitarian laws and according to the rules of humanity in general. The distinguished legal language cannot cover those. This Court is not oblivious to the harm caused to civilians as shown by its rulings over many years, and not just the Court, but also the IDF and the defense establishment in general. This Court deals with that continuously on almost a daily basis, including judicial review of decisions made by military entities in various contexts that are threaded throughout the judgments. The Court’s decisions have also earned internal criticism from various circles in Israel, but it will not alter its path which takes into consideration domestic and international law, and will always remember that we are here, living through these events.

C. Indeed, this Court has more than once allowed petitions that were directed against the defense establishment (see, inter alia, HCJ 7195/08 Abu Rahma v. Brigadier General Avichai Mandelblit Judge Advocate General (unpublished). On the other hand, I occasionally visit prisons and meet security prisoners, among them murderers who are given rights under all the laws and rules, including visits by the Red Cross and their families. Gilad Shalit was held for five years and four months by evil Hamas operatives without the Red Cross being able to visit him. If we take Operation Cast Lead in 2009, this Court immediately heard, during the battles, petitions on humanitarian and other issues connected with the war, which is unique and has no comparison in other countries - that the highest court in a country would deal, in real time, during the occurrence of the actual events, with issues pertaining to the war that is being waged at that time. In addition, I can attest firsthand to innumerable discussions in various forums, among them the very highest, such as the Government and the Cabinet, during my term as attorney general, and before that as the government secretary, in which the legal entities reminded and warned about the duty of caution under the circumstances vis-à-vis innocent civilians, at the time when terrorists were using civilian neighborhoods and residents for their own criminal actions. This Court will remain on guard and the military and civilian law enforcement entities will fulfill their obligations with regard to specific complaints and with regard to their obligation to act in that context and in the context of “government offenses” in general, there is no need to elaborate (in addition to the words of my colleague the president here, there is extensive case law. See, e.g., HCJ 769/02 The Public Committee Against Torture v. Government of Israel (paragraph 40)).

D. With great restraint my colleague analyzed the petition and the arguments therein, and addressed each one of them. I concur, as stated, with all of her words.

Justice

Justice Hanan Melcer

I concur with the judgment of the president, Justice D. Beinisch.

I would like to add that allegations similar to those made by the Petitioners in the petition were made at the time to the prosecutor who was appointed to examine the NATO bombings in Yugoslavia, which were perpetrated in response to the harm done to the residents of Kosovo. The prosecutor there was assisted by a special committee, which advised her on the issue and determined as follows:

… in the particular incidents reviewed by the committee with particular care (…) the committee has not assessed any particular incidents as justifying the commencement of an investigation by the OTP. NATO has admitted that mistakes did occur during the bombing campaign; errors of judgment may also have occurred. Selection of certain objectives for attack may be subject to legal debate. On the basis of the information reviewed, however, the committee is of the opinion that neither an in-depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified. In all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences.

(See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, §90

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