Marab v IDF Commander

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

(Barak, President; Dorner and Englard JJ)

Marab and Others
and
Israel Defence Force Commander in the West Bank and Another

Human rights Detention Detention without trial for security reasons Justification in emergency Limitations on power of detention Whether periods of detention too long Requirements of necessity and proportionality

War and armed conflict Occupation Security powers of occupant Detention without trial for investigative purposes Applicable law Fourth Geneva Convention, 1949 International Covenant on Civil and Political Rights, 1966 Hague Regulations on the Laws and Customs of War on Land, 1907 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. Within the framework of that operation, a large number of local residents were arrested and detained on grounds of security by Israel Defence Force (IDF) troops pursuant to a special order, Detention in Time of Warfare (Temporary Order) Qudea and Samaria) (Number 1500)2002 (Order 1500), issued by the IDF Commander in the West Bank. Order 1500, extended by Order 1502, authorized the army officers to detain persons on grounds of security for a maximum of eighteen days without judicial review or access to counsel and to delay their investigation for up to eight days. Later, Order 1500 was amended by Order 1505, extended by Order 1512, so as to shorten the maximum duration of detention without judicial approval to twelve days and without access to legal counsel to four days, unless military authorities had determined on a case-by-case analysis that further delay of up to a total of thirty-four days was necessary for investigative or security reasons. During the procedures in the present case, the order was amended once more by Order 1518, reducing the maximum possible postponement of investigation to four days and of communication

with counsel to two days or up to a total of thirty-two days on the basis of a higher administrative authority decision

The three individual petitioners were detained at Ofer Camp under the terms of Order 1500. The petitioners argued that this order and the subsequent amending orders allowed for arbitrary detentions, first, by authorizing mass detentions for investigative purpose without the individual examination of each case, and second, by disproportionately extending the period of detention without investigation, access to counsel or court hearing, thus violating the basic principles of both Israeli constitutional law as well as international human rights and humanitarian law, in particular the 1966 International Covenant on Civil and Political Rights (ICCPR) and the Fourth Geneva Convention of 1949.

The respondent asserted that prolonged detention periods without judicial approval or communication with legal counsel were exceptional and necessary in order to permit more effective intelligence gathering and interrogation of the detained security suspects, due to the unexpected multitude of persons detained during Operation Defensive Wall and a limited number of army interrogators. Detentions were carried out on the basis of individual circumstances and not as mass detentions on a general basis. Order 1500 and the subsequent orders were lawful under Israeli constitutional law as well as the international law of armed conflict, in particular Article 43 of the Annex to the 1907 Hague Convention Regulations Respecting the Laws and Customs of War on Land (the Hague Regulations) and the Fourth Geneva Convention. Furthermore, the respondent stressed that the orders were twice amended so as ultimately to allow the detainees to meet lawyers within two days and have investigations started within four days from the date of detention.

Held (unanimously):Orders 1500, 1505, 1512 and 1518 were declared null and void in part.

(1) The legality of the special administrative orders at issue in this case had to be examined in the framework of Israeli constitutional law, international human rights law, including the ICCPR, and international law of armed conflict, in particular the Hague Regulations and the Fourth Geneva Convention (paras. 1922, 2636, 415).

(2) Detention of security suspects during warfare for solely investigative purposes was a legitimate but exceptional measure, which by nature entailed a negation of personal liberty. The authority of the military administration in the occupied territory to order such detention derived, inter alia, from its general authority, defined in Article 43 of the 1907 Hague Regulations, to ensure public order and safety of the local population, and from Article 78 of the Fourth Geneva Convention, recognizing the possibility of detention of local residents for investigative purposes. Nonetheless, according to international standards, expressed in, inter alia, Article 27 of the Fourth Geneva Convention, the exercise of this authority to detain for investigative purposes must be reasonable and proportionate, reflecting the proper balance between the liberty of the individuals in the territory and the public security needs. Detentions must be carried out on the basis of individual security reasons rather than on a general basis, to prevent arbitrary detentions, prohibited under international law. In the present case, Order 1500 and the subsequent amending orders authorized detention for investigative purposes only where there existed an evidentiary basis that raised individual suspicion against the specific detainee. Therefore, the petitioners' claim with regard to the authority to detain provided in Orders 1500, 1505, 1512 and 1518 was rejected (paras. 1925).

(3) Detentions of persons who pose a security threat pursuant to an administrative rather than a judicial order were permitted under both Israeli and international law, but their scope and application were strictly limited due to their serious interference with the human rights of the individual. Under customary international law, prompt investigations and judicial oversight, as well as access to a lawyer within a few days, were essential to prevent unlawful arbitrary detentions; although short delays might be warranted under the exceptional conditions of warfare, they must still reflect the appropriate balance between individual liberty and security imperatives. Unreasonable and disproportionate extensions of detention period without investigation, judicial review or communication with legal counsel were incompatible with the fundamental principles of both Israeli and international law and could not be justified by a lack of resources. In the present case, the eighteen-day detention period set forth in Order 1500, extended by Order 1502, and the twelve-day detention period under Order 1505, extended by Orders 1512 and 1518, regarding the length of time a person could be held without judicial approval, were disproportionately long and should be shortened. The postponement of investigations for eight days under Order 1500 as extended by Orders 1502, 1505 and 1512 and for four days under Order 1518 were likewise unacceptable; investigations should begin promptly, without unreasonable delay. On the other hand, the delay in communication with legal counsel under these special orders did not violate the standard of reasonableness and proportionality and was thus upheld (paras. 2549).

The following is the text of the judgment of the Court, delivered by President Barak:

The Facts

1. Since September 2002, Palestinians have carried out many terrorist attacks against Israelis, both in Judea and Samaria as well as in Israel. The defense forces have been fighting this terrorism. To destroy the terrorist infrastructure, the Israeli government decided to carry out an extensive operation, Operation Defensive Wall. As part of this operation, which was initiated at the end of March 2002, the IDF forces entered various areas of Judea and Samaria. Their intention was to detain wanted persons as well as members of several terrorist organizations. As of May 5, 2002, about 7,000 persons had been detained in the context of this operation. Among those detained were persons who were not associated with terrorism; some of these persons were released after a short period of time. Initial screening was done in temporary facilities which were set up at brigade headquarters. Those who were not released after this screening were moved to the detention facility in Ofer Camp. The investigation continued and many more were released. A number of the detainees were then moved to the detention facility in Kziot. As of May 15, 2002, of the 7,000 persons who had been detained since the start of Operation Defensive Wall, about 1,600 remained in detention.

2. The detentions were initially carried out under the regular criminal detention laws of the area, under the Defense Regulations Order (Judea and Samaria) (Number 378)1970 [hereinafter Order 378]. It soon became clear that Order 378 did not provide a suitable framework for screening thousands of persons detained within a number of days. Thus, on May 5, 2002, respondent No 1 promulgated a special order: Detention in Time of Warfare (Temporary Order) (Judea and Samaria) (Number 1500)2002 [hereinafter Order 1500].

3. Order 1500 established a special framework regarding detention during warfare. The order applied to a detainee, which was defined as follows:

The principal innovation of Order 1500 may be found in section 2(a):

Under this section, officers are authorized to order the detention of a detainee for a period of 18 days, and a judicial detention order is not required. In order to continue holding a detainee beyond 18 days, however, a judge must be approached. Section 2(d) of Order 1500 relates explicitly to this matter:

During the first 18 day period of detention, detainees have no option to be heard by a judge. This is due to the fact that...

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