Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
Israel’s Order Concerning Administrative Detention (2007) states:
4. (a) A person detained according to this Order will be brought within 8 days of his above mentioned arrest before a judge, in accordance with para. 3(b)(1) of the Order concerning Security Provisions (Judea and Samaria) (No 378), 1970 (hereafter: The Security Provisions Order), with a rank no lower than Major. The judge may confirm or annul the Arrest Warrant, or shorten the detention period stated in it;
If the detainee was not brought before a judge, and court proceedings not begun within the above mentioned 8 days, the detainee shall be released, unless according to any law or security legislation there is another reason for his detention.
(b) The judge shall annul the Arrest Warrant if it is proven that it was issued on grounds other than security of the area or public security considerations, or that it was not issued in good faith or that its issue was based on irrelevant considerations.
The decision of the judge, made according to par. 4, may be appealed before a judge of a Military Appeals Court as stated in par. 3(b)(4) of the Security Provisions Order, who shall have all the authorizations granted a judge as per this order.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to habeas corpus:
(a) A military court may at any time issue a habeas corpus against a defendant, if it sees a need to do so in order to force him to report to trial at the determined time.
(b) A defendant against whom a habeas corpus
has been issued pursuant to subsection (a) shall be brought before the military court as soon as possible, and it shall order whether he should be held in detention or released under conditions it determines.
In its judgment in the Jamal Mustafa Yousef’Abdullah (Hussin) case in 2005, Israel’s High Court of Justice stated:
With respect to the petitioner’s arguments relating to the lack of judicial review of the holding of detainees pursuant to the expulsion order, this question does not directly relate to the petitioner’s case, there being no impulse to expel him immediately to Jordan. Holding him in custody is necessitated by the temporary order that this court issued at his request, to prevent his expulsion abroad. It is observed, however, that judicial intervention with regard to detention orders is indeed necessary (HCJ 3239/02, Marab’e v. Commander of IDF Forces, P. D. 57 (2) 349). Judicial intervention is a barrier to arbitrariness. It is necessitated by the principle of the rule of law and principles of international law, which require respect for the rights of protected persons. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter – the Fourth Geneva Convention) includes a general provision, whereby (article 27):
Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all time be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
The Fourth Geneva Convention does not include, indeed, provisions with respect to fixed periods of detention and times for judicial intervention in detention, but their specification of the arrangements of judicial review is proper and required under the principles of customary international law (compare, Marab
, at pp. 369–370). Indeed, as the respondent indicated, the state is acting to create as soon as possible an internal judicial-review apparatus – alongside review of this court – with respect to holding in custody persons designated for expulsion. It is proper that this apparatus be completed within a reasonable time.