The court relied primarily on a warning issued by the Australian government advising citizens to avoid travel to Israel

http://dir.salon.com/story/mwt/feature/2003/01/07/custody/index3.html

For her part, Julie, who now goes by the last name of Schuster, declined to discuss the "zone of war" issue, accurately noting that Tunheim's primary finding was that the United States, not Israel, is her sons' habitual residence. "The 'grave risk' question is a secondary issue," she says. "It's not the reason they weren't returned to Israel."

Robert appealed the court's ruling to the U.S. Court of Appeals for the 8th Circuit. Last month, in a 2-1 decision, a three-judge panel of the appeals court upheld the finding of the district court that the U.S. was the habitual residence of the Silverman boys. The majority declined to address the zone-of-war issue. In a strong dissent, the third judge argued that the lower court erred in its rulings on both the residence and zone-of-war questions.

McKay, Robert's attorney, said she was very disappointed by the ruling. She has petitioned the appeals court for an en banc review, meaning that the case would be heard by the entire Court of Appeals rather than just a panel. If the full court accepts the case, it will have to assess the parents' conflicting accounts of the family's move abroad and decide whether the children's short stay there qualifies, under the terms of the convention, as a transfer of their habitual residence from the United States to Israel.

But how it rules on the zone-of-war question, while not necessarily the factor that determines where the Silverman boys will ultimately live, will perhaps be watched even more closely by lawyers like Hilton and Crouch. The court is likely to review recent decisions in two other Hague Convention countries -- Great Britain and France -- which reached the opposite conclusion and ordered abducted children to be sent back to Israel. It will also likely review decisions by the foreign courts that have ruled, like Tunheim, against Israel.

In one of those cases, an Australian appeals court this year overturned a lower court ruling that would have required Janine Claire Genish-Grant to return her two preteen children to Israel, where their father, Moshe Genish, lives. The panel agreed with a lower court that Israel was the children's habitual residence but rejected that court's order that the children should be returned, ruling instead that such a move would expose the children to danger.

In so ruling, the court relied primarily on a warning issued by the Australian government advising citizens to avoid travel to Israel. The judges noted, in particular, that the advisory stated that "all population centers in Israel are at very high risk of terrorist attack" and that "targets in the past have typically been areas where large numbers of people gather."

The ruling pointed out that the father worked at the kind of environment -- a hotel and restaurant complex -- named in the travel advisory as a potential target. Moreover, wrote the judges, should the children be sent back to Israel, they would have to pass through an international airport and travel within Israel by bus -- modes of transportation that could place them at risk of attack.

This ruling was issued last May -- months, that is, before the deadly Bali disco bombing that killed dozens of Australian citizens, who believed themselves to be far out of range of terrorist attacks.

For his part, Robert Silverman points out that, given the number of casualties in New York and Washington, D.C., on Sept. 11, future terror attacks in the United States could easily be deadlier than any perpetrated so far in Israel. To bolster his argument, he cites American officials' own pronouncements of the country's posture in the current tensions. "President Bush says that the United States is in a war on terror," he says, his voice swelling with anger. "Does that mean children shouldn't live there?"