Center for Defense of Individual v IDF Commander

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court.2

(Barak, President; Beinisch and Englard JJ)

Center for the Defense of the Individual and Others
and
Israel Defence Force Commander in the West Bank

Human rights Detention Detention without trial on security grounds Conditions of detention United Nations Standard Minimum Rules for Treatment of Prisoners Geneva Conventions, 1949 Minimum humanitarian conditions for detainees Whether Israel Defence Force security detentions in West Bank violated minimum conditions

War and armed conflict Occupation Security powers Detention without trial Governing law West Bank Applicability of Geneva Conventions, 1949 The law of Israel

Summary: The facts:Following a significant increase in terrorist activities originating in the West Bank, the Israeli Government launched a special military operation, Operation Defensive Wall, in that area. During this operation, a large number of local residents were arrested on grounds of national security and brought to detention facilities by Israel Defence Force (IDF) troops under the authority of a special order, Detention in Time of Warfare (Temporary Order) (Judea and Samaria) (Number 1500)2002, issued by the IDF Commander in the West Bank. At first, all detainees were held for investigation at temporary detention facilities at brigade headquarters. Subsequently, a significant number of the detainees were released, while the rest were transferred to a central detention facility at Ofer Camp for more intensive interrogation.

The petitioners complained about the inappropriate detention conditions at both the temporary facilities and at Ofer Camp. They claimed that in the initial stage, the detainees had been held in inhumane conditions and had been exposed to physical and verbal abuse by the supervising soldiers. Similarly, the initial conditions at Ofer Camp had been unbearable due, inter alia, to overcrowding, lack of sanitary facilities, insufficient supply of food, blankets, clothing and toiletries, and inadequate medical treatment. Although the conditions had gradually somewhat improved, they remained unsatisfactory. Therefore, the petitioners asked the Court to order the respondent to

provide suitable and respectable detention conditions during both stages of detention

For his part, the respondent acknowledged that at the beginning it was hard to provide more than absolutely minimal detention conditions due to the unexpected multitude of the detained persons, but stressed that by the start of the procedures in this case, all of the detainees had been provided with humane, appropriate and reasonable detention conditions in conformity with Israeli and international law.

Held (unanimously):The petitions were denied.

(1) Detention was a legitimate security measure, which by its nature entailed a negation of liberty. Nonetheless, even in emergency security situations, all persons detained should be treated humanely and with respect for human dignity. This minimum general requirement reflected the balance between the security needs and the basic human rights of the individual and had been expressed in both Israel's administrative law and international legal instruments, including the 1955 United Nations Standard Minimum Rules for Treatment of Prisoners, the 1966 International Covenant on Civil and Political Rights, to which Israel was a party, and the 1949 Fourth Geneva Convention. Although Israel had not considered the latter to be formally applicable, it had nonetheless accepted to be bound by the humanitarian provisions of this Convention, which clearly included its provisions regarding detention conditions and therefore applied in this case. The minimal standards of detention conditions, applicable to the present case, required, inter alia, that the detainees must be protected from all acts of violence and that they must be provided with proper housing, clothing, food and medical care (paras. 225).

(2) In the present case, these minimal standards had not been satisfied in the initial stages of detentions in the Operation Defensive Wall. No deviation from minimal standards could be justified by reference to overcrowding or security considerations. The army had planned this operation in advance and should have been prepared to accommodate the anticipated large number of detainees in conformity with the minimal international and domestic standards. However, by the time of the first hearing in the present case, the minimal humanitarian requirements had been met and in some cases exceeded: therefore the petitions were denied (paras. 267).

(3) Two matters raised in the petitions, namely the supply of dining tables and the provision of literature and games to the detainees, remained unsatisfactory and should be resolved as they could not be justified on grounds of security (para. 28).

(4) Judicial review, however crucial, could not provide constant inspection and supervision of detention conditions. To that end, internal supervision mechanisms, for example in the form of a permanent advisory committee, should be established within the army itself (paras. 2930).

The text of the judgment of the Court, delivered by President Barak, commences on the following page.

Facts

1. Beginning in September of 2000, there was an increase in Palestinian terrorist activity against the Jewish community in Judea and Samaria, the Gaza Strip, and within Israel itself. Hundreds were killed and wounded. In reaction, the army initiated military activities. Hundreds of Palestinians were killed and wounded. Terrorist activity intensified in the beginning of 2002. In March of that year there was an increase of Palestinian terrorist activity. Approximately one hundred and twenty Israeli civilians were killed and hundreds were wounded. In response to the terrorist activity, the government decided, on March 29, 2002, to carry out a large-scale military operation. The goal of the operation, Operation Defensive Wall, was to destroy the Palestinian terrorist infrastructure. During the operation, the Israel Defense Forces [hereinafter the IDF] entered many areas in Judea and Samaria which were under the control of the Palestinian Authority.

2. Within the framework of Operation Defensive Wall, the army carried out a wide-ranging operation of detention. The IDF entered Palestinian cities and villages and detained many suspects. At the height of the activity about 6,000 people were detained. Initially, the detentions were carried out in accordance with the standard criminal detention laws of the area, specifically Security Regulations Order 387 (Judea and Samaria)1970. Since April 5, 2002, the detentions have been carried out under the authority of a special orderDetention in Time of Warfare (Temporary Order) (Judea and Samaria) (Number 1500)2002 [hereinafter Order 1500]. During the first stage of these detentions, the detainees were brought to temporary facilities, which were set up at brigade headquarters. Here the detainees were initially screened, a process whose duration extended between a few hours and two days. At this point, a substantial number of the detainees were released. During the second stage, those who remained were transferred to a central detention facility in the area, located at Ofer Camp, for further investigation. Several days after the initiation of Operation Defensive Wall, after the detention facilities at Ofer Camp were prepared, the temporary screening facilities were shut down and the initial screening stage also took place at Ofer Camp. The petition before us is directed against the detention conditions at both the initial temporary facilities and at Ofer Camp. In the third stage, some of the detainees were transferred to Kziot Camp. An additional petition directed against the detention conditions at Kziot, HCJ 5591/02, is pending before this Court, and will be dealt with separately. A petition regarding the lawfulness of Order 1500 is also pending before this Court. See HCJ 3239/02. The current petition deals only with the temporary detention conditions at the brigade headquarters during the first stage, and the detention conditions during the second phase at Ofer Camp.

Petitioners' Arguments

3. The petitioners complain about the detention conditions at both the temporary facilities and at Ofer Camp. Regarding the temporary facilities, the petitioners claim that the detainees were forced to sit on the ground with their heads bent and their hands down, and that their hands were handcuffed in a rough manner, which caused fierce pains and bruise marks. Furthermore, petitioners claim that the detainees' eyes were covered, that, if they moved or raised their heads, they were exposed to the physical and verbal abuse of the supervising soldiers, that they remained in this difficult position for hours, and that, during this time, they were exposed to the rigors of the weather and were unable to sleep. Petitioners further assert that detainees were deprived of sustenance, that, though they were permitted to go to the bathroom, permission was not often granted, and that there was no documentation of the possessions that were taken from the detainees, including ID cards, cellular phones and cash.

4. The petitioners also complain about the inhumane conditions at Ofer Camp. They claim that the facilities are exceedingly overcrowded. The detainees were transferred into tents or shelters, which do not shield the detainees against the rigors of the weather. The detainees were not supplied with sufficient mattresses, nor were the mattresses that were supplied of reasonable quality. Furthermore, petitioners assert that the detainees did not receive enough blankets, and that the food that they were provided...

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