Practice Relating to Rule 99. Deprivation of Liberty
Israel’s Internment of Unlawful Combatants Law (2002), as amended in 2008, states:
3. (a) Where an officer with the rank of at least major and the function appointed by the Chief of Staff has a reasonable basis to believe that the person brought before him is an unlawful combatant, he may direct that such person be interned until decision is made regarding issuance of an internment order (in this Law – temporary internment order).
7. With regard to this law, a person who is a member of a force that carries out hostilities against the State of Israel or who took part in the hostilities of such a force, whether directly or indirectly, shall be regarded as someone whose release will harm state security as long as the hostilities of that force against the State of Israel have not ended, as long as the contrary has not been proved.
Israel’s Order Concerning Administrative Detention (2007) states:
1. (a) If the IDF forces commander in the area or the military commander authorized by him for the purpose of this Order (hereinafter: Military Commander) has reasonable basis to believe that for reasons of security of the area or public security it is necessary to hold a certain person in detention, he is entitled, by a warrant signed by him, to have that person arrested for a period that will be written on the warrant which will not exceed six months (hereinafter: Arrest Warrant).
(b) If the Military Commander has reasonable basis to believe, before the end of the period of the Arrest Warrant, as per sub para (a), that for reasons of security of the area or public security the detainee should continue to be held in detention, he is entitled, as per the Warrant signed by him, to order from time to time an extension of the period of the original Arrest Warrant for a period that will not exceed six months, and the extension will be as legal as the original Arrest Warrant to all extents and purposes.
(c) An Arrest Warrant as per this para can be given also without the presence of the person to whom the arrest applies.
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.
In its judgment in the Yassin case in 2002, Israel’s High Court of Justice stated:
7. It is appropriate to open this discussion with the normative framework of this case, as was done by Justice Shamgar in Sajadia. This is in response to the possible claim that, since the detainees being held in Kziot Camp are terrorists who have harmed innocent people, we should not consider their detention conditions. This argument is fundamentally incorrect. Those being detained in the Kziot Camp have not been tried; needless to say, they have not been convicted. They still enjoy the presumption of innocence. Justice Shamgar expressed this notion in Sajadia:
An administrative detainee has not been convicted, nor is he carrying out a sentence. He is detained in accordance with a decision made by an administrative-military authority, as an exceptional emergency means due to security reasons … The aim of the detention is to prevent security hazards, which arise from actions that the detainee is liable to commit, where there is no reasonable possibility of preventing such hazards through standard legal action, such as criminal proceedings, or by taking administrative steps with milder consequences … The difference between a convicted prisoner and a detainee being held in order to prevent security hazards, is manifest in the status of the administrative detainee and his detention conditions.
Sajadia, at 821. In the same spirit Justice Bach noted:
With all due respect for security considerations, we must not forget that we are talking about detainees deprived of liberty without their having been convicted of any crime in standard criminal proceedings. We must not be satisfied with a situation in which the detention conditions of these detainees are poorer than the conditions of prisoners who have been sentenced to imprisonment after being convicted.
Sajadia, at 831. In a different context, Justice Zamir indicated that:
Administrative detention deprives an individual of his liberty in the most severe fashion. Liberty is denied, not by the court, but rather by an administrative authority; not by a judicial proceeding, but rather by an administrative decision.
Not only should we not allow the detention conditions of administrative detainees to fall short of those of convicted prisoners, we should also strive to ensure that the conditions of detainees surpass those provided to prisoners. These detainees continue to enjoy the presumption of innocence. See HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in Israel v. Commander of the IDF Forces in the West Bank (unreported case). This approach was established by the Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981 [hereinafter the Detention Regulations]. The security considerations that led to the detention of these people do not justify holding them under unsatisfactory conditions.
9. An important legal source with regard to detention conditions is the Emergency Powers (Detention) Law-1979. The Detention Regulations were set out pursuant to the grant of authority contained in this law. These regulations set forth the standards that govern the detention conditions of those who are administratively detained in Israel. They also apply to whoever is detained in the area pursuant to security legislation. This is established in regulation 6(b) of the Emergency Regulations (Offences Committed in Israeli-Held Areas – Jurisdiction and Legal Assistance)-1967, which states:
Where an arrest warrant or detention order has been issued against any person in the area, pursuant to the proclamation or the order of a commander, such a warrant or order may be executed in Israel in the same manner that arrest warrants and detention orders are executed in Israel; and that person may be transferred, for detention, to the area where the crime was committed.
In its judgment in the Mar’ab case in 2003, Israel’s High Court of Justice stated:
18. An examination of this petition indicates that petitioners have raised four issues. First, petitioners contest the authority to detain. The petitioners claim that Orders 1500, 1502, 1505, 1512, and 1518 unlawfully create a new type of detention – the orders allow mass detention and free the authorities examining each case individually …
The Authority to Detain for the Purpose of Investigation
19. Detention for the purpose of investigation infringes the liberty of the detainee. Occasionally, in order to prevent the disruption of investigatory proceedings or to ensure public peace and safety, such detention is unavoidable. A delicate balance must be struck between the liberty of the individual, who enjoys the presumption of innocence, and between public peace and safety. Such is the case with regard to the internal balance within the state – between the citizen and his state – and such is the case with regard to the external balance outside the state – between a state that is engaged in war, and between persons detained during that war. Such is the case with regard to this balance in time of peace, and such is the case with regard to this balance in time of war. Thus, the general provision of Article 9.1 of the International Covenant on Civil and Political Rights (1966), which provides:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.
The prohibition is not against detention, but rather against arbitrary detention. The various laws which apply to this matter, whether they concern times of peace or times of war, are intended to establish the proper balance by which the detention will no longer be arbitrary.
20. This approach accords with Israeli Law. Man’s inherent liberty is at the foundation of the Jewish and democratic values of the State of Israel. “Personal liberty is a primary constitutional right, and from a practical point of view, is a condition for the realization of other fundamental rights.” HCJ 6055/95 Tzemach v. Minister of Defense, at 261 (Zamir, J.) Nevertheless, this is not an absolute right. It may be restricted. A person may be detained for investigative purposes – in order to prevent the disruption of an investigation or to prevent a danger to the public presented by the detainee – where the proper balance between the liberty of the individual and public interest justifies the denial of that right. The balance demands that the detaining authority possess an evidentiary basis sufficient to establish suspicion against the individual detainee. Such is the case with regard to “regular” criminal detention, whether for investigative purposes or until the end of the proceedings. See sections 13, 21 and 23 of the Criminal Procedure (Enforcement Authorities-Detentions) Law-1996. Such is the case with regard to administrative detention. See section 2 of the Emergency Powers (Detentions) Law-1979, and HCJ Citrin v. IDF Commander in Judea and Samaria (unreported case); HCJ 1361/91 Masalem v. IDF Commander in Gaza Strip, at 444, 456; HCJ 554/81 Branasa v. GOC Central Command, at 247, 250; HCJ 814/88 Nassrallah v. IDF Commander in the West Bank, at 265, 271; HCJ 7015/0 Ajuri v. IDF Commander in the West Bank, at 352, 371.
Moreover, it must always be kept in mind that detention without the establishment of criminal responsibility should only occur in unique and exceptional cases. The general rule is one of liberty[.] Detention is the exception. The general rule is one of freedom. Confinement is an exception. See Crim.App. 2316/95 Ganimat v. State of Israel, at 649. There is no authority to detain arbitrarily. There is no need, in the context of this petition, to decide to what extent these principles apply to internal Israeli law regarding detention in the area. It suffices to state that we are convinced that internal Israeli law corresponds to international law in this matter. Furthermore, the fundamental principles of Israeli administrative law apply to the commander in the area. See HCJ Jamit Askhan Al-Maalmon v. IDF Commander in Judea and Samaria. The fundamental principles which are most important to the matter at hand are those regarding the duty of each public authority to act reasonably and proportionately, while properly balancing between individual liberty and public necessity.
21. International law adopts a similar approach concerning occupation in times of war. On the one hand, the liberty of each resident of occupied territory is, of course, recognized. On the other hand, international law also recognizes the duty and power of the occupying state, acting through the military commander, to preserve public peace and safety; see Article 43 of the Annex to the Hague Convention Regulations Respecting The Laws and Customs of War on Land-1907 [hereinafter Hague Regulations]. In this framework, the military commander has the authority to promulgate security legislation intended to allow the occupying state to fulfill its function of preserving the peace, protecting the security of the occupying state, and the security of its soldiers. See Article 64 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949 [hereinafter the Fourth Geneva Convention]. Consequently, the military commander has the authority to detain any person suspect of committing criminal offences, and any person he considers harmful to the security of the area. He may also set regulations concerning detention for investigative purposes – as in the matter at hand – or administrative detention – which is not our interest in this petition. Vice-President M. Shamgar, in HCJ 102/82
Tzemel v. Minister of Defense, at 369, stated in this regard:
Among the authority of a warring party is the power to detain hostile agents who endanger its security due to the nature of their activities … Whoever endangers the security of the forces of the warring party may be imprisoned.
True, the Fourth Geneva Convention contains no specific article regarding the authority of the commander to order detentions for investigative purposes. However, this authority can be derived from the law in the area and is included in the general authority of the commander of the area to preserve peace and security. This law may be changed by security legislation under certain circumstances. Such legislation must reflect the necessary balance between security needs and the liberty of the individual in the territory. An expression of this delicate balance may be found in Article 27 of the Fourth Geneva Convention:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity … However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.
Moreover, Article 78 of the Fourth Geneva Convention provides that residents of the area may, at most, be subjected to inter[n]ment or assigned residence. This appears to allow for the possibility of detention for the purpose of investigating an offence against security legislation. We would reach this same conclusion if we were to examine this from the perspective of international human rights law. International law, of course, recognizes the authority to detain for investigative purposes, and demands that this authority be balanced properly against the liberty of the individual. Thus, regular criminal detention is acceptable, while arbitrary detention is unacceptable. Orders such as Orders 378 and 1226 were issued with this in mind.
22. The petitioners argued that Order 1500, as well as Orders 1502, 1505, 1512, and 1518, establish a new type of detention, aside from standard criminal detention and administrative detention. Petitioners assert that his new type of detention allows for detention without cause, and should thus be nullified. Indeed, we accept that the law which applies to the area recognizes only two types of detention: detention for the purpose of criminal investigation, as in Order 378, and administrative detention, as in Order 1226. There exists no authority to carry out detentions without “cause for detention.” In Tzemel, Vice-President Shamgar expressed as much after quoting the provisions of Article 78 of the Fourth Geneva Convention:
The discussed Article allows for the imprisonment of persons, who, due to their behavior or personal data, must be detained for definitive defense reasons. As is our custom, we hold that every case of detention must be the result of a decision which weighs the interests and data regarding the person who is being considered for detention.
Tzemel at 375. Detentions which are not based upon the suspicion that the detainee endangers, or may be a danger to public peace and security, are arbitrary. The military commander does not have the authority to order such detentions. See Prosecutor v. Delalic, Tribunal for the Former Yugoslavia, IT-96-21. Compare also section 7(1) of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against Terrorism: “A person suspected of terrorist activities may only be arrested if there are suspicions.” With this in mind, we turn to Order 1500.
23. Under Order 1500, an order may be given to hold a detainee in detention. Order 1500 defines a “detainee” as follows:
Detainee – one who has been detained, since March 29, 2002, during warfare in the area and the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, the IDF [Israel Defense Forces] or the public.
A similar provision exists in Order 1505:
Detainee – one who has been detained in the area during antiterrorism activities, while the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, IDF security or the public.
From these provisions, we find that under Order 1500 as well as Order 1505 – and similarly under Orders 1512 and 1518 – detention may only be carried out where there is a “cause for detention.” The cause required is that the circumstances of the detention raise the suspicion that the detainee endangers or may be a danger to security. Thus, a person should not be detained merely because he has been detained during warfare; a person should not be detained merely because he is located in a house or village wherein other detainees are located. The circumstances of his detention must be such that they raise the suspicion that he – he individually and no one else – presents a danger to security. Such a suspicion may be raised because he was detained in an area of warfare while he was actively fighting or carrying out terrorist activities, or because he is suspect of being involved in warfare or terrorism.
Of course, the evidentiary basis for the establishment of this suspicion varies from one matter to another. When shots are fired at the defense forces from a house, any person located in the house with the ability to shoot may be suspect of endangering security. This basis may be established against a single person or a group of persons. However, this does not mean that Orders 1500, 1505, 1512 or 1518 allow for “mass detentions,” just as detaining a group of demonstrators for the purpose of investigation, when one of the demonstrators has shot at police officers, does not constitute mass detention. The only detention authority set in these orders is the authority to detain where there exists an individual cause for detention against a specific detainee. It is insignificant whether that cause applies to an isolated individual or if it exists with regard to that individual as part of a large group. The size of the group has no bearing. Rather, what matters is the existence of circumstances which raise the suspicion that the individual detainee presents a danger to security. Thus, for example, petitioner 1 was detained, as there is information that he is active in the Popular Front for the Liberation of Palestine, a terrorist organization. He recruited people for the terrorist organization. Petitioner 2 was detained because he is active in the Tanzim. Petitioner 3 was detained because he is a member of the Tanzim military. Thus, an individual cause for detention existed with regard to each of the individual petitioners.
24. Thus, the amended Order 1500 is included in the category of detention for investigative purposes. It is intended to prevent the disruption of investigative proceedings due to the flight of a detainee whose circumstances of detention raise the suspicion that he is a danger to security. The difference between this detention and regular criminal detention lies only in the circumstances under which they are carried out. Detention on the authority of the amended Order 1500 is carried out under circumstances of warfare, whereas regular criminal detention is carried out in cases controlled by the police. In both cases, we are dealing with individual detention based on an evidentiary basis that raises individual suspicion against the detainee. For these reasons, we reject the petitioners’ first claim.
47. Section 2(b) of Order 1500 provides:
The detainee shall be given the opportunity to voice his claims within eight days of his detention.
This provision remains valid under Order 1505. Section 2 of Order 1518 shortens this period of detention without investigation to four days. The petitioners claim that the provision itself is illegal. They assert that it constitutes an excessive violation of the detainee’s liberty. It undermines the right to liberty and denies due process. It may lead to mistaken or arbitrary detrainments. Conversely, the respondents claim that the significance of the provision is that it compels the investigators to question the detainee within eight days, in order to make an initial investigation of his identity and hear his account of his detention. This period cannot be shortened due to the large number of detainees, on the one hand, and the constraints limiting the number of professional investigators, on the other. It was noted before us that the investigating officials have limited capabilities, and they are not equipped to deal with such a large number of detainees in a more compact schedule.
48. We accept that investigations should not be performed during warfare or during military operations, nor can the detainee’s account be heard during this time. The investigation can only begin when the detainee, against whom there stands an individual cause for detention, is brought to a detention facility which allows for investigation. Moreover, we also accept that at a location which holds large number of detainees, some time may pass before it is possible to organize for initial investigations. This, of course, must be done promptly. It is especially important to begin the investigation rapidly at this initial stage, since simple facts such as age, circumstances of detention and identity, which may determine whether the detention should be continued, may become clear at this stage. Of course, often this initial investigation is insufficient, and the investigation must continue. All of this must be done promptly.
Respondents are of course aware of this. Their argument is simple: there is a lack of professional investigators. Unfortunately, this explanation is unsatisfactory. Security needs, on the one hand, and the liberty of the individual on the other, all lead to the need to increase the number of investigators. This is especially true during these difficult times in which we are plagued by terrorism, and even more so when it was expected that the number of detainees would rise due to Operation Defensive Wall. Regarding the considerations of individual liberty that justify such an increase, Justice Dorner has stated:
Fundamental rights essentially have a social price. The preservation of man’s fundamental rights is not only the concern of the individual, but of all of society, and it shapes society’s image.
Ganimat, at 645. In a similar spirit, Justice Zamir, in Tzemach, at 281, has noted:
A society is measured, among other things, by the relative weight it attributes to personal liberty. This weight must express itself not only in pleasant remarks and legal literature, but also in the budget. The protection of human rights often has its price. Society must be ready to pay a price to protect human rights.
Such is the case in the matter at hand. A society which desires both security and individual liberty must pay the price. The mere lack of investigators cannot justify neglecting to investigate. Everything possible should be done to increase the number of investigators. This will guarantee both security and individual liberty. Furthermore, the beginning of the investigation is also affected by our holding that the arrangements according to which a detainee may be held for 18 days without being brought before a judge, under Order 1500, and for 12 days, under Order 1505, 1512, and 1518, to be illegal. Now, the detainee’s own appeal to a judge will require that the investigation be carried out sooner.
49. We conclude, from this, that the provisions of section 2(b) of Order 1500 and section 2 of Order 1518 are invalid. The respondents must decide on a substitute arrangement. For this reason, we suspend our declaration that section 2(b) of Order 1500 and section 2 of Order 1518 are void. It will become valid only after six months pass from the date of this judgment. Compare Tzemach
, at 284. Here too, we considered the respondents’ request to present us with confidential information, see supra
para. 36, and here too we are of the opinion that such is neither appropriate nor desirable. This suspension period should be utilized for reorganization, which should be in accord with international and Israeli law.
In its judgment in the Sadr case in 2003, Israel’s High Court of Justice stated:
2.In Barham it was decided that in light of the impingement upon individual liberties involved in the use of the military commander’s authority to order administrative detention, a “wide model” of judicial review of the detention decisions is to be recognized. In the judgment (Or, J.) it was determined that in reviewing the justification for an administrative detention order which was based upon classified information, the legal judge does not fulfill his duty merely by examining the question whether “it was prima facie permissible for the authorized agency to decide in the way it did on the basis of the material before it,” but rather that he must also “examine the question of the reliability of the submitted material as part of his assessment of the weight of the material,” and that within that framework he must also “demand and receive explanations from the officials capable of providing them” (p. 346 of the judgment). However, the Court rejected an argument raised before it, according to which in examining the reliability of the classified information, the military judge must also examine the informants who relayed the information against the detainee to the authorities, in order to receive a direct impression of their reliability. The Court refrained from deciding the question whether and when such examination can be held, and on that issue it sufficed itself with the assumption that “even if such examinations can be held, it is clear that they will not be performed routinely, and only in exceptional cases to be determined according to the
discretion of the legal judge, in accordance with the balance between the necessary security needs … and the basic rights of liberty and due process” (ibid). [emphasis in original]
6.On the general level we wish to comment that it was not for no reason that it was determined in Barham
that the scope of the examination which the legal judge is obligated to perform in reviewing the justification for the administrative detention order is a matter of his discretion. That ruling is based upon judicial experience and common sense: the scope of the examination and the means needed in order to perform it are derived from the amount, the level, and the quality of the classified material submitted to the judge. Information relating to a number of events is not the same as information relating to a sole event; information from one source is not the same as information from various sources; and information based solely upon statements of agents and informants is not the same as information that is also based upon or reinforced by documents attained by the security services or intelligence stemming from the use of special devices. Furthermore, it appears from our aggregate experience that in many cases the information submitted to the judge also includes data regarding the informants, including information regarding the essence of their relationship with the General Security Service or with other agencies. On the basis of viewing the written material – which is likely to be accompanied by questions presented to the official who submitted the material to him (a representative of the prosecution or a representative of the General Security Service) – the judge can decide whether the material before him is sufficient in order to persuade him regarding the existence of reliable information which can justify the detention. If the Judge is of the opinion that the case before him requires deeper and more detailed examination of the information, it is presumed that he will order such examination and determine the appropriate ways to carry it out. Thus, for example, the judge might summon additional officials among the General Security Service who were involved in the collection of the material, in order to get a direct impression of their assessments regarding its reliability and to examine their considerations.
In its judgment in the Salame case in 2003, Israel’s High Court of Justice stated:
4. Petitioners argue that there is no justification for the extension of their administrative detention, and that its extension is not legal. They point out the clear impingement which their administrative detention causes to their basic rights. Thus, the means of administrative detention is not to be employed when the petitioners can be put on criminal trial. According to their argument, a real effort to investigate the suspicions against them has not been made, and new intelligence material in their cases has not been collected, and thus, as time has passed, they should be released. Petitioners claim that the military courts should have obliged the security agencies to show a basis for the suspicions against them with continued investigation, and made the confirmation of the extension orders conditional upon such investigation. Thus it would have been possible to exchange the path of administrative detention with a proper criminal proceeding. Petitioner no. 3 further points out that he has no history of suspicions of hostile activity, and thus there is no justification for his continued administrative detention. Respondent argues that the extension of the administrative detentions is legal. According to his argument, this Court, sitting as a High Court of Justice, should not serve as an additional instance of appeal over the military courts, and that petitioners’ arguments are essentially appellate in nature. On the merits, respondent claims that the evidence in the cases of each of petitioners justified the extension of their administrative detention, even considering the fact that the detention periods are not short. Regarding the duty to investigate the evidence, respondent explains that the evidence collected against respondents sic is intelligence material which is varied and reliable, but in the investigations that the security officials have carried out, declassified information that can be used in a criminal proceeding was not collected.
The Normative Framework
5. Respondent’s authority to order administrative detention is arranged in the Order Regarding Administrative Detention (Temporary Provision)(Judea and Samaria)(no. 1226), 5738-1988 (hereinafter: “the order”), as it has been amended from time to time. Respondent can order administrative detention if there is “reasonable basis to assume that reasons of the security of the area or the security of the public require that a person be held in detention” (section 1(a) of the order). Respondent shall not exercise his authority pursuant to the order “unless he is of the opinion that it is necessary for imperative reasons of security” (section 3 of the order). The period of detention should not be longer than six months. Respondent is permitted, “from time to time”, to order “the extension of the original detention order for a period no longer than six months” (section 1(b) of the order). This authority of respondent is subject to judicial review. A person who was been detained pursuant to the order must be brought before a legal judge within 18 days of his detention. The legal judge may confirm the detention order, to annul it, or to shorten the period of detention determined in it (section 4 of the order). The legal judge’s decision can be appealed before a judge of the military court of appeals (section 5a of the order). These provisions also apply to decisions regarding the extension of administrative detention (section 1(a) of the order). In the framework of these proceedings, the administrative detainee is allowed to be represented before the military courts.
6. Petitioners’ argument in principle is that the legality of the extension of their administrative detention is conditional upon the existence of a systematic investigation on the part of security officials, in order to collect evidence that can replace the administrative detention proceeding with a criminal proceeding to be prosecuted against the detainee, allowing him to confront the evidence against him. According to their argument, administrative detention should not be extended when such an investigation is not underway.
Indeed, the existence of the possibility of carrying out a criminal proceeding against a person suspect of hostile activity on a security background must be preferred to an administrative act against him (HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56 PD (6) 352, 373). In a criminal proceeding the accused of terrorist activity or of aiding such activity can confront the evidence against him, an option which is at times denied him in the administrative proceeding. However, it is important to remember that it is not always possible, for reasons of protecting sources of information, to hold a criminal proceeding. It should not be forgotten that administrative detention and criminal proceedings act on different, and separate, planes. The point of departure is that administrative detention is about preventing a future danger to the security of the State or the security of the public. Administrative detention is not intended to be a means for punishing for acts that were committed in the past, or to serve as a substitute for the penal means (ADP 2/82 Lerner v. The Minister of Defense, 42 PD (3) 529, 531). Reliable evidence justifying the administrative detention of a person can be amassed by the authorities “without there being a possibility of bringing the witnesses to testify what they saw with their own eyes or heard with their own ears” (HCJ 554/81 Baransa v. GOC Central Command, 36 PD (4) 247, 251). Thus, the continuation of the ability to act via administrative detention should not be made conditional upon investigation that can have implications on the penal plane.
7. However, that cannot be the end of the discussion of the issue before us. This Court has stated that the purpose of the Emergency Powers Law (Detention), 5739-1979 is to preserve the security of the State, but at the same time to preserve human dignity and freedom (FHCrim 7048/97 A. v. The Minister of Defense, 54 PD (1) 721, 740). That is also applicable to the detentions order before us. Indeed, the order is intended to preserve the security of the public and the security of the area (section 1(a) of the order). However, it is clear that administrative detention pursuant to it impinges severely upon the liberty of the detainee. The order is intended to ensure that this impingement upholds constitutional and legal standards. Thus, the order arranges the existence of judicial review of the decision to order administrative detention and the decision to extend it. The information and evidence that the security officials present is to be examined “through a careful and meticulous examination” (ADP 4/94 Ben Chorin v. The State of Israel, 48 PD (5) 329, 335 (D. Levin, J.). Judicial review of the detention proceeding is substantive. In its framework, the administrative detainee has a right to representation. The military court, and the military court of appeals, can raise the question of the reliability of the evidence, and not merely examine whether a reasonable agency would make the decision on the basis of that material (HCJ 4400/98 Barham v. Legal Judge Col. Shefi, 52 PD (5) 337, 346). This judicial review is an internal part of the process leading to the legality of the administrative detention order, or the process leading to the legality of its extension (ADP 2/86 A. v. The Minister of Defense), 41 PD (2) 508, 515–516; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57 PD (2) 349, 368–369). In addition, respondent’s decision to order a person’s administrative detention or to extend such detention is also subject to the review of the High Court of Justice. Although this Court does not sit as a court of appeals over the military court or the military court of appeals, in employing its judicial review, this Court considers the severe impingement to the human rights of administrative detainees, and grants considerable weight to it while examining the basis which led the security agencies to employ the means of administrative detention, and the discretion exercised by the military courts.
8. The need to maintain a proper balance between the security of the State and the protection of the human rights of detainees is not manifest merely in the existence of an arrangement for judicial review. It is also manifest in the routine conduct of the security agencies related to the decision to put a person in administrative detention or to extend administrative detention. That is especially the case regarding the administrative evidence material that serves as a basis for the decision to employ the means of administrative detention. The security evidence material is not uniform. As Mazza, J. recently noted:
“Information relating to a number of events is not the same as information relating to a sole event; information from one source is not the same as information from various sources; and information based solely upon statements of agents and informants is not the same as information that is also based upon or reinforced by documents attained by the security services or intelligence stemming from the use of special devices” (HCJ 5994/03 Sadr v. The Commander of IDF Forces in the West Bank (yet unpublished, paragraph 6).
The strength of the evidence needed in order to justify administrative detention can change with the passage of time. Evidence that justifies the issuance of an administrative detention order may not be sufficient in order to justify the extension of that same detention. And evidence justifying the extension of the administrative detention order may not justify an additional extension of it. The security officials must examine whether the administrative evidence material against the detainee can justify the continuation of his detention. They have the duty to take into account new relevant material that can be attained by reasonable means (see
HCJ 297/82 Berger v. The Minister of the Interior
, 37 PD (3) 29, 44). Nevertheless, it cannot be said that the fact that no updated evidential material has been attained justifies, in and of itself, not extending the administrative detention order. All depends upon the circumstances of the case. In any case, there must be an examination whether the evidence material before the security officials can provide a basis for the extent of dangerousness that is required in order to justify a detainee’s continued detainment. One must take into account, for example, the nature of the suspicions against the detainee, the strength of the evidence against him, et cetera
. There will be cases in which the fact that updated evidence has not been collected against an administrative detainee will be held against respondent when he wishes to extend the administrative detention. In such cases it will be said that the foundation of evidence in the hands of the security officials can no longer justify the extension of the administrative detention (BARUCH BRACHA, 2 MISHPAT MINHALI 304 (5756)).
In its judgment in the Al-Ahmar case in 2004, Israel’s High Court of Justice stated:
Petitioner’s counsel argued before us that petitioner’s detention has no justification, and that the time has come to release him and send him on his way. Furthermore, so further argued Ms. Tsemel, the longer a person’s detention continues, the greater the need is for evidential material justifying the continuation of the detention. A person’s dangerousness – so argues Ms. Tsemel – becomes less acute with the passage of time, and the longer the administrative detention continues, the newer and better the evidential material that is before the authorized agency must be. We agree only to a part of Ms. Tsemel’s argument. We agree with her, of course, that the longer the administrative decision continues, so the balance between the conflicting considerations might change, for the benefit of the detainee. However, we shall not agree with her that there is necessarily a need for newer and better evidential material, as she stated it. At all times the authorized agency must weigh the conflicting considerations against each other at the time of consideration, and every case has its own circumstances.
See and compare: HCJ 5784/03 Salame v. The Commander of IDF Forces in the Judea and Samaria Area (yet unpublished). The question in each and every case will revolve around the intensity of the danger posed by the detainee to the lives and security of the individual and society, and, of course, the human right of liberty.
We heard respondents in camera – like the judicial instances before us – and we read written material that was presented to us. We are of the opinion that this evidential material should not be revealed to petitioner, not even in part, all for the security of the public and the protection of human life. The written material and the supplemental oral arguments persuaded us, as they persuaded the instances before us, that petitioner’s dangerousness to the individual and society is most great, and that there is no defect or fault in the decision to detain him as decided, even after the substantial period that he has been in administrative detention.
Ms. Tsemel further argued before us that it is right that we should examine alternatives to detention for petitioner, including release under conditions, even burdensome conditions. That argument was examined during the last judicial review performed upon the administrative detention order, and we agree with the opinion of the legal judge, that the alternatives proposed by petitioner are not appropriate ones, considering his dangerousness. The idea that the petitioner would move his residence outside of the country for a period of years was raised, and respondents were willing to consider it; however petitioner rejected it. We therefore see that before us as well, there is no appropriate alternative to detention.
In conclusion: we found no cause to intervene in the authorities’ decision to detain petitioner in administrative detention, and we decide to reject the petition.
In its judgment in the IDF West Bank Military Commander case in 2005, Israel’s High Court of Justice stated:
8.(a) (1) The normative framework is the Order Regarding Administrative Detention (Temporary Provision) Judea and Samaria (no. 1226) 5748-1988, as interpreted in the judgment in HCJ 2320/98 El Amla v. The Commander of IDF Forces in the Judea and Samaria Area (Zamir, J.). That judgment attempted to outline the balance regarding the complex issue of administrative detention. It goes without saying that administrative detention, in and of itself, is a harsh and severe means, in the employment of which the courts and tribunals have a special duty of supervision; see HCJ 5555/05 Federman v. GOC Central Command (yet unpublished). Indeed, in a criminal trial the investigation material is relayed to the accused; the material hidden from him for reasons set out by law cannot be used against him. In administrative detention, the detainee cannot view the material against him, which serves as the basis for his detention, and thus he cannot directly defend himself against it; nor is he put on criminal trial, so he cannot carry out the needed investigations regarding the evidence. However, administrative detention is a necessary means, forced upon us in conditions of a severe war against terrorism, and it is but obvious that sources (who at times are liable to pay with their lives if they are revealed) or methods or means for attaining intelligence information cannot be revealed. In light of all that, a Court reviewing administrative detention has, as mentioned, a special duty to inquire and investigate regarding the material presented to it, as, to a certain extent, it serves as the detainee’s mouth and as his “agent” – in the sense of the trust put in it; it must remember that “there is no justification for such a severe impingement upon human liberty, unless it is done to prevent a real danger to the security of the public” (El Amla, Zamir, J., at p. 349) and for “imperative security reasons” (the aforementioned Order Regarding Administrative Detention (Temporary Provision) Judea and Samaria (1226), section 1).
(2) In El Amla it was determined – as is obvious in the complex reality – that “the purpose of the detentions order is first and foremost the safeguarding of the security of the area and the security of the public. However, that purpose dovetails with an additional purpose – the protection of human liberty. The detentions order determines that every detention order can be appealed before a judge, and that the judge has the jurisdiction to annul the order or to shorten the detention. It is thus clear that the detentions order authorized the judge to balance between the security needs and human liberty” (p. 356). In that judgment, this Court intended to ensure that if a legal judge decided for a substantive reason not to extend, or to shorten, a period of administrative detention, there shall be no “going around” the decision by issuing a new detention order without there being a significant change regarding the dangerousness of the detainee (see ibid, at pp. 357–358). The summary of the ruling is that “the military commander may not extend the period of detention after a judge has decided to shorten the period, except in the case of one of the following: (1) the judge decided to shorten the detention order so that the military commander can reconsider, toward the end of the shortened period, if there is justification for the continuation of the detention, or (2) after the judge decided to shorten the detention period, new information was received, or a change of circumstances that can significantly alter the level of dangerousness of the detainee has occurred (p. 364).
(3) That ruling still stands, firmly.
In its judgment in Anonymous v. Commander of IDF Forces in Judea and Samaria in 2005, Israel’s High Court of Justice stated:
5. The power to order administrative detention is granted, in the Administrative Detentions Order, to Respondent 1. The Administrative Detentions Order states the conditions in which Respondent 1 may order administrative detention. These reasons are security reasons (see HCJ 5784/03, Salameh v. Commander of IDF Forces in Judea and Samaria, P. D. 57 (6) 721, 725 (hereafter – Salameh)). Respondent 1 may only exercise his power if there is a “reasonable basis to assume that reasons of security of the region or public security require that a particular person be held in detention” and there are “imperative security reasons” for this (sections 1(a), 3 of the Administrative Detentions Order (see, also, Salameh, supra). Indeed, imprisonment of a person in administrative detention severely impedes a person’s liberty. “Liberty is denied, not by a court, but by an administrative authority; not in a judicial proceeding, but by administrative decision; generally, not on the basis of disclosed facts, which one can cope with, but on the basis of privileged material (comments of Justice Zamir in HCJ 2320/98, Al-’Amleh v. Commander of IDF Forces in Judea and Samaria, P. D. 52 (3) 346, 349). In considering issuance of an administrative detention order, the military commander must balance the right of the administrative detainee to personal liberty against the security considerations. The work of balancing the severe harm to freedoms of the individual and public security is not simple. This task is imposed on the military commander. He has discretion in the matter.
6. The military commander must exercise his discretion proportionately. In this context, the length of time a person has been in administrative detention is important. I noted this in the past, in the context of the Emergency Powers (Detentions) Law, 5739 – 1979:
Administrative detention cannot continue indefinitely. The longer the period that the detention lasts, the greater the need for reasons of considerable weight to justify further extension of the detention. With the passage of time, the means of administrative detention become so burdensome as to cease to be proportionate. Indeed, even when the power to impair liberty by means of a detention order is given, use of this power must be proportionate. It is forbidden to cross the “breaking point” beyond which the administrative detention is no longer proportionate (Crim. Reh. 7048/97, A. and other Anonymous Persons v. Minister of Defense, P. D. 54 (1) 721, 744).
These comments are appropriate also for administrative detention under the Administrative Detentions Order (compare Salameh, supra, 726). “The longer the administrative detention lasts, the greater the weight of the detainee’s right to personal liberty grows in balancing it against considerations of the public interest, and with it increases the burden on the competent authority to provide a basis for the necessity of continuing to hold the person in detention” (HCJ 11006/04, Qadri v. Commander of IDF Forces in Judea and Samaria (not reported), paragraph 6; see, also, HCJ 4960/05, G’afreh v. Commander of IDF Forces in the West Bank (not reported)).
7. The question of proportionality of the use of the means of administrative detention will be examined according to the objective underlying the Administrative Detentions Order. The order empowers the military commander to order administrative detention when reasons of public security dictate. The administrative detention anticipates a future danger. It is, at its basis, not a punitive means, but a preventive means (compare Adm. App. 8607/04, Fahima v. State of Israel (not reported), paragraph 8). Taking into account this objective of administrative detention, it is understood that extension of the period of administrative detention must be examined in accordance with the period of detention and the degree of dangerousness posed by the detainee. Continuation of the detention is a function of the danger. This danger is examined according to the circumstances. It depends on the level of danger the evidence attributes to the administrative detainee. It depends on the credibility of the evidence itself and the degree to which it is up to date. The longer that the administrative detention lasts, the greater the burden imposed on the military commander to show the dangerousness of the administrative detainee.
8. The discretion given to the military commander is subject to judicial review. Because administrative detention infringes human rights, judicial review of this proceeding, both by the military courts and by this court, is very important. “The judicial review is substantive … The Military Court and the Military Court of Appeals may consider the question of the credibility of the evidentiary material, and not only examine if a reasonable authority would have made its decision on the basis of the aforesaid material … This judicial review is an internal part of consolidating the legality of the administrative detention order or of consolidating the legality of the extension of the order” (Salameh,
supra, 726–727; see
, also, HCJ 4400/98, Barham v. Jurist Judge Lt. Col. Shefi,
P. D. 52 (5) 337). The military courts must examine the material relating to holding a person in administrative detention. The judicial review must be done as soon as possible following the administrative detention (compare
HCJ 3239/02, Mar’ab v. Commander of IDF Forces in Judea and Samaria,
P. D. 57 (2) 349. 368-372); compare recently also HCJ 7607/05, ‘Abdullah v. Commander of IDF Forces in the West Bank
(not reported), paragraph 9). Thus, where the detention orders specify a certain time in which the administrative detainee must be brought before a judge for the purpose of commencing the hearing in his matter (section 4(a) of the [Administrative Detentions Order; see, also, Mar’ab,
382–384). In addition to the military courts, the respondents’ discretion is subject to the review of the High Court of Justice (compare HCJ 1052/05, Federman v. OC Central Command Moshe Kaplinsky
(not reported), paragraph 6). “Although this court does not sit as an appellate court of the Military Court and of the Military Court of Appeals, in carrying out its judicial review, this court takes into account the severe harm to human rights of administrative detainees, and gives this factor substantial weight when examining the foundation that led the security authorities to impose administrative detention, and the discretion of the military courts”.
In its judgment in the A. v. State of Israel case in 2008, concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
13. … [S]omeone who is an “unlawful combatant” is subject to the Fourth Geneva Convention [1949 Geneva Convention IV], but according to the provisions of the aforesaid convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.
15. … The mechanism provided in the law [Internment of Unlawful Combatants Law (2002)] is a mechanism of administrative detention in every respect … whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is taking part in the organization’s operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.
16. It should be noted that the actual power provided in the law for the administrative detention of a “civilian” who is an “unlawful combatant” on account of the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus article 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting “control and security” measures that are justified on security grounds. …
17. … The principle underlying all the detention provisions provided in the Fourth Geneva Convention is that it is possible to detai[n] “civilians” for security reasons in accordance with the extent of the threat that they represent. According to the aforesaid convention, there is a power of detention for security reasons, whether we are concerned with the inhabitants of an occupied territory or we are concerned with foreigners who were found in the territory of one of the states involved in the dispute. In the appellants’ case, although the Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ended, and therefore the detention of the appellants in the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.
18. It is one of the first principles of our legal system that administrative detention is conditional upon the existence of a ground for detention that derives from the individual threat of the detainee to the security of the state. … This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish someone for acts that have already been committed or to deter others from committing them, but its purpose is to prevent the tangible risk presented by the acts of the detainee to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank, at pages 370–372, and the references cited there).
19. It should be noted that the individual threat to the security of the state represented by the detainee is also required by the principles of international humanitarian law. …
20. No one before us disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principle, which make administrative detention conditional upon proving the existence of a ground that establishes an individual threat. Indeed, an examination of the provisions of the law in accordance with the aforesaid principles shows that the law does not allow anyone to be detained arbitrarily, and that the power of detention under the law is conditional upon the existence of a ground of detention that is based on the individual threat represented by the detainee. …
21. … [I] in order to detain a person it is not sufficient for him to have made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that someone is an “unlawful combatant,” the state needs to prove that the detainee made a contribution to the waging of hostilities against the state, whether directly or indirectly, in a manner that can indicate his individual threat. … [I]n order to establish a ground for detention with regard to someone who is a member of an active terrorist organization whose self-declared goal is to fight unceasingly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that are sufficient to include him in the cycle of hostilities in its broad sense, in such a way that his detention will be justified under the law.
Thus we see that for the purpose of detention under the law at issue, the state is liable to prove with administrative proofs that the detainee is an “unlawful combatant” with the meaning that we discussed, namely that the detainee took a direct or indirect part that involved a contribution to the fighting – a part that is not negligible or marginal – in the hostilities against the State of Israel, or that the detainee belongs to an organization that is carrying out hostilities, in which case we should consider the detainee’s connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept. …
22. In our remarks above, we discussed the interpretation of the definition of “unlawful combatant.” According to the aforesaid interpretation, the state is required to prove that the detainee took a direct or indirect part, which was of significance, in the hostilities against the State of Israel, or that the detainee belonged to an organization that carries out hostilities, all of which while taking into account the connection and the extent of his contribution to the organization’s cycle of hostilities. In these circumstances a person’s detention may be required in order to remove him from the cycle of hostilities that harms the security of the citizens and residents of the State of Israel. The question that arises in this regard is: what evidence is required in order to persuade the court that the detainee satisfies the conditions of the definition of an “unlawful combatant” with the aforesaid meaning.
This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a basis for administrative detention (see Ajuri v. IDF Commander in West Bank, at page 372, where this rule was determined with regard to the measure of assigned residence; also see and cf. the remarks of Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel  IsrSC 59(3) 258, at page 264; HCJ 554/81 Beransa v. Central Commander  IsrSC 36(4) 247). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. In view of the importance of the right to personal liberty and in view of the security purpose of the aforesaid law, the provisions of sections 2 and 3 of the law should be interpreted in such a way that the state is liable to prove, with clear and convincing administrative evidence, that even if the detainee did not take a direct or indirect part in the hostilities against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, in such a way that his administrative detention is justified in order to prevent his returning to the aforesaid cycle of hostilities.
The significance of the requirement that there is clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the detainee and the degree to which the relevant intelligence information against him is up to date; this is necessary both for proving the detainee to be an “unlawful combatant” under section 2 of the law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return later. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state, and naturally we can learn of these threats from tangible evidence concerning the detainee’s acts in the past (see the remarks of President M. Shamgar in Beransa v. Central Commander, at pages 249–250; HCJ 11026/05 A v. IDF Commander (unreported decision of 22 December 2005), at paragraph 5). Notwithstanding, for the purposes of long-term detention under the Internment of Unlawful Combatants Law, adequate administrative evidence is required, and a single piece of evidence with regard to an isolated act carried out in the distant past is insufficient.
23. It follows that for the purposes of detention under the Internment of Unlawful Combatants Law the state is required to prove with clear and convincing evidence that, even if the detainee did not take a significant direct or indirect part in the hostilities against the State of Israel, he belonged to a terror organization and made a contribution to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, since proving that someone is a member of a terrorist organization is not the same as proving that someone is a member of a regular army, because of the manner in which terrorist organizations work and the manner in which people join their ranks. …
33. … [A]s a rule the use of the extreme measure of administrative detention is justified in circumstances where other measures, including holding a criminal trial, are impossible, because of the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when holding a criminal trial does not provide a satisfactory solution to averting the threat presented to the security of the state in circumstances where after serving the sentence the person concerned is likely to become a security danger once again.
In its judgment in the Said case in 2008, concerning the continued detention of a Palestinian from Gaza under the Internment of Unlawful Combatants Law (2002), as amended in 2008, Israel’s Supreme Court stated:
Purpose of the Internment Law
19. The Internment Law] is intended to protect state security by removing foreign individuals engaged in terrorist actions from the cycle of hostilities in light of their danger to state security. The threat to state security is a significant condition forming the basis of the grounds for the internment. Interpretation and implementation of the provisions of the Law reflect an inclination to reduce, as far as possible, the degree of the violation of the human right to liberty, that is necessary to achieve the security objective, to satisfy the requirement of constitutional proportionality drawn from the Basic Law: Human Dignity and Liberty, and from principles of international law.
Conditions for an internment order – “unlawful combatant” who poses a personal threat, and fear of harm to state security
20. As stated above, the Law requires that two conditions be satisfied for issuance of an internment order: the person is an “unlawful combatant,” and the harm to state security anticipated from his release (section 3(b)(1) of the Law).
21. In regard to the definition of “unlawful combatant,” according to the guiding rule, the detainee must pose a personal threat for this definition to be met. Pursuant to section 2 of the Law, personal threat is learned from one the two following things: the detainee himself took part in hostilities against Israel, or he belongs to a force that carries out hostilities against the State of Israel. Under the first alternative, it is required that the person take part in hostilities against the State of Israel, directly or indirectly, and in this regard, it is not sufficient for him to have made a remote, negligible or marginal contribution to the hostilities, but he must have made a contribution to the waging of hostilities in a manner that can indicate his individual threat. As for the second alternative, regarding a person who is a member of a force carrying out hostilities against the state, it is insufficient to show any tenuous connection with a terrorist organization. On the other hand, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that are sufficient to include him in the cycle of hostilities in its broad sense (paragraph 21 of the judgment in A. & B.) A. v. State of Israel case in 2008].
22. The second condition required to establish grounds for detention under this law requires that there be a reasonable basis for believing that the release of the detainee will harm state security. Under section 5(c) of the Law, cancellation of the internment order is possible only when release of the detainee will not harm state security, or when there are special reasons that justify release.
Quality of the evidence to establish a ground for internment
23. The guiding rule further states that, in regard to establishing the conditions for a person to come within the meaning of “unlawful combatant,” there is a need for clear, convincing, and updated administrative evidence from the perspective of quantity and quality (paragraph 22 of the judgment in A. & B.).
Legal presumptions in sections 7 and 8 of the Internment Law
24. The presumption in section 7 of the Internment Law states that, with regard to this Law, a person who took part in hostilities of a force that carries out hostilities against Israel, or is a member of such a force, shall be regarded as someone whose release will harm state security as long as the hostilities of that force against the State of Israel have not ended, as long as the contrary has not been proved. The presumption in section 8 states that the determination of the Minister of Defense, in a certificate signed by him, that a certain force carries out hostilities against Israel or that the hostilities of that force against Israel have come to an end or have not yet come to an end shall serve as evidence in any legal proceeding, unless the contrary is proved.
29. The conclusions arising from examination of the fundamental elements of the Internment Law, based on the guiding rule in
A. & B., are:
First, the Internment Law passes the constitutional test. The harsh security reality in Israel requires that significant security measures be taken to protect residents of Israel. Achieving the security objective entails significant harm to the personal liberty of the detainees. There is a reasonable relationship between the harm to liberty and the public interest; however, the reasonableness of this relationship depends on proper and cautious use of the means given to the competent authority under the Law. The Law enables significant violation of the personal liberty of the detainee, for which reason there is a duty to use the means through which its objective can be achieved with minimal violation of human rights to the extent possible.
30. In this framework, there is a duty to conduct a careful examination of the specific question of existence of grounds for the internment and of justification for the continued validity of the internment order. The extreme means of detention, which enable denial of personal liberty of a person for a long time, by an order that has no defined date of termination, places a special duty both on the competent authority and on the court in making the judicial review to carefully examine, from time to time, the extent of the justification for continuation of the detention, while exercising restraint in use of the detention means and limiting it to situations in which real security needs require it. The requisite balance between real security needs and use of the extreme means, which enables denial of a person’s liberty under the Internment Law, must be satisfied in the specific implementation of the Law, to ensure its operation in a manner that satisfies fundamental constitutional standards.
[emphasis in original]
In 2008, in its judgment in the A. v. State of Israel case (No. 2) concerning the continued detention of a Palestinian from Gaza under the Internment of Unlawful Combatants Law (2002), as amended in 2008, Israel’s High Court of Justice stated:
5. As described above, the internment of the appellant was made pursuant to his being declared an unlawful combatant. As stated in section 2 of the Unlawful Combatants Law, an unlawful combatant is:
a person who took part in hostilities against the State of Israel, whether directly or indirectly, or who is a member of a force carrying out hostilities against the State of Israel, who does not satisfy the conditions granting a prisoner of war status under international humanitarian law, as set out in article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War.
Parenthetically, it should be explained that, as held in Crim. App. 6659/06, [ A v. State of Israel case, 11 June 2008] … (hereafter: Iyad), “unlawful combatants” have the status of “civilians” under international law, for which reason their internment is not to be deemed captivity.
6. As can be seen, the Law specifies two alternatives (which may, of course, overlap) as an initial condition for internment, which form the basis for declaring a person an unlawful combatant. One, the person himself took part in hostilities against the State of Israel, and two, the person is a member of the force carrying out hostilities. As section 3(b)(1) of the Unlawful Combatants Law states, from the moment that a particular person is an unlawful combatant, the chief of staff may, if he finds an additional condition is satisfied – that is, that his release will prejudice state security – order his internment. These determinations, regarding satisfaction of the two conditions, undergo initial judicial review shortly after the internment order is issued, and in the periodic reviews that examine the possibility of releasing the unlawful combatant.
8. Notwithstanding the above, I did not find that the first condition was satisfied in the appellant’s case, that is, that he is an “unlawful combatant” within the meaning of the term in section 2 of the Unlawful Combatants Law. As stated, this section specifies two possibilities for inclusion in this definition – “group” (being a member of a force carrying out hostilities) or “personal” (taking part in hostilities, directly or indirectly). Even though the respondent does not contend this explicitly, it appears from its contentions that the circumstances of the appellant combine the two possibilities. Whether one or the other, in light of the cautious interpretation that must be given to the definitions in this law, I do not find that the appellant comes within the boundaries of these definitions.
9. In examining the interpretation of the definitions that form the basis of the definition of a person as an “unlawful combatant,” it should be recalled that we are involved with a definition having extremely harsh consequences, both from the perspective of “pure” law and from the humanitarian perspective. For this reason, it was held that the provisions of sections 2 and 3 of the Law should be examined cautiously, requiring clear and convincing evidence as a condition for determining they are satisfied (see Iyad, paragraphs 21 and 22; Crim. App. 7446/08, Sa’id v. State of Israel (not yet reported, 7 November 2008), paragraphs 29 and 30; and see, also, Crim. App. 1226/06, Iyad v. State of Israel (not reported, 14 March 2006, paragraph 18)).
10. In our case, and in light of the position stated in the opinions prepared by the Israel Security Agency regarding the appellant, I did not find it could be said that the appellant is a member of a force carrying out hostilities against the State of Israel. As appears from these opinions, and from the information presented before me by representatives of the Israel Security Agency, the information against the appellant relates to his engaging in weapons smuggling. In the framework of the evidence presented before me, I did not find evidence related to any real organizational belonging of the appellant, or to his activity in the framework of one terrorist organization or another. Therefore, I did not find that the appellant comes within the “group” alternative.
11. In this regard, I cannot accept the holding of the District Court, whereby the family cell to which the appellant belongs can be deemed a hostile force, so as to satisfy the requirements of section 2 of the Unlawful Combatants Law.
… [I]t is not sufficient that the person be in the ranks of some entity that is hostile to the state and whose existence endangers its security, but it must be an entity that carries out, in an active and organized manner, hostile terrorist activity against the State of Israel. The paradigmatic force coming within this definition is, of course, a “terrorist organization,” and in particular an organization certified by the Minister of Defense, as stated in section 8 of the Law. Of course, this is not an exhaustive and binding definition, but the further the circumstances of a particular entity are from a terrorist organization, in the form of organizations specified in the said certificate, there is less inclination to see such a force as one that comes within the definition specified in section 2 of the Unlawful Combatants Law. Therefore, I do not find that the “family cell,” in and of itself, and without it being attached to some “substantial” organization, can be deemed a hostile force within the definition in the section. The situation would be different in the case in which, for example, an organization existed that was founded on a family cell, or is identified with some family cell, but it cannot be said that the family cell itself is a hostile force for the purpose of the section. …
12. In the “personal” alternative also, I did not find that the appellant comes within the definition of “unlawful combatant” under section 2 of the Law. This possibility involves, as stated, a person taking part in hostilities, directly or indirectly. In the appellant’s case, I did not find any evidence indicating that he took a real part in hostilities directed against Israel. As stated, the evidence against him related primarily, but not only, to his engaging in weapons smuggling. Indeed, it is possible to argue that this information – and additional, privileged information – indicates that the appellant took an indirect part in hostilities. Without providing detail, the appellant’s acts indeed contributed to the hostilities against the State of Israel, and that acts of this kind would occur in the future. However, in applying the cautious principles of interpretation that are required as stated in implementing the Unlawful Combatants Law, I did not find that, in this context, the contribution of the appellant to these acts can be deemed a contribution that constitutes taking part in the hostilities, as the Law requires. …
Despite the appellant’s connections to terrorist organizations and hostilities carried out against the State of Israel, whether through weapons smuggling or by other means, under the circumstances of the case, I did not find that these constitute taking a real part in hostilities, to the extent necessary to justify his internment under the Unlawful Combatants Law.
13. I also reached this conclusion following a fundamental constitutional examination of the appellant’s internment. As is the case with every administrative act, this act, too, must satisfy, inter alia, the principle of proportionality, for it not to deviate from the boundaries of the law authorizing it. In our case, the appellant’s internment under the Unlawful Combatants Law raises the question of whether there is a means that causes lesser harm and achieves the same objective. In this case, I find that, in his case, administrative detention under the Emergency Powers (Detentions) Law, 5739 – 1979 (hereafter: the Administrative Detention Law), is sufficient.
14. The Administrative Detention Law empowers the Minister of Defense to order the detention of a person for a period not to exceed six months, if he finds “a reasonable basis to assume that reasons of state security or public security” require his detention (section 2(a) of the law). This power of the Minister of Defense has been discussed in this court, also with respect to its relationship to the criminal law, and it was held that, although it is deemed an extreme means, which severely violates personal liberty, there are times that the conventional tools are insufficient to cope with the danger to society, and there is no option to using this means as well (see, for example, Adm. Det. App. 8788/03 , Federman v. Minister of Defense, P. D. 58 (1) 176 (23003); Adm. Det. App. 8607/04, Fatima v. State of Israel, P. D. 49 (3) 258 (2004)).
16. Therefore, it cannot be said that the extent of the appellant’s contribution to hostilities carried out by terrorist organizations justifies using the means of internment under the Unlawful Combatants Law, and it is sufficient to hold him in administrative detention under the Administrative Detention Law. As stated, the evidence presented before me clearly indicates he poses a danger to state security. However, prevention of this specific dangerousness comports more with the arrangements set out in the Administrative Detention Law – which despite their severe harm, are far less extreme than the harm of the arrangements specified in the Unlawful Combatants Law.
[emphasis in original]
In 2009, in its judgment in the A. v. State of Israel case (No. 4) concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
6. This Court has already discussed the fact that the objective of the law [Internment of Unlawful Combatants Law (2002)] is to allow the detention of foreign persons who belong to a terrorist organization or take part in hostilities against the security of the state, in order to “… prevent return of a person, who endangers the security of the state by his activity or membership in a terrorist organization, to cycle of hostilities” [A. v. State of Israel case, 2008, § 6]. The objective is, therefore, a security objective that arises against the familiar reality of a difficult and continuing struggle against the terrorist organizations.
7. Issuance of a detention order pursuant to the law must fulfill three conditions: the first is a preliminary condition, that the detention be of a person who is not entitled to the status of a prisoner of war (section 1 of the law). The second condition is that said person fulfills the definition of an “unlawful combatant” pursuant to section 2 of the law, which determines:
‘unlawful combatant’ – a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, to whom the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply.
The two alternate types of “unlawful combatant” listed in this section require that a person not be declared an “unlawful combatant” if it has not been found that he personally presents danger. Thus, regarding the first type in the definition of unlawful combatant – the fact that the person takes part in hostilities against the State of Israel – it has already been held that “a distant, negligible and marginal contribution” is not sufficient, and that the State must prove that said person’s contribution to acts of hostility against the State indicate personal dangerousness. Regarding the second type – the fact that said person is a member of a force committing acts of hostility against the State of Israel – it has been held that any loose link to a terrorist organization is not sufficient, but it is not required that said person take direct or indirect part in the hostilities themselves, and his contribution to the organization can be manifest in additional ways that lead to his inclusion in the cycle of hostilities in the broad sense [
A. v. State of Israel case, 2008, § 21]. The State must present clear and persuasive administrative evidence in order to prove its claim that the person whose arrest is being requested enters one of the two alternate definitions of an “unlawful combatant”. Noting the detention order’s impingement upon the right to liberty, the requirement regarding presenting clear and convincing administrative evidence was interpreted such that “importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current;” [A. v. State of Israel case, 2008, § 22].
8. The third condition for declaring a person an unlawful combatant is that there is reasonable basis to assume that his release will compromise State Security (section 3(a) of the law). In order to prove this element, the State can use the presumptions in sections 7 & 8 of the law, both of which are rebuttable. Section 7 determines that for the purposes of the law, a person who is a member of a force committing hostilities against the State of Israel or who has taken part in hostilities of such a force, is seen as a person whose release will compromise State security until the hostilities of that force against the State of Israel have ceased. Section 8 determines that the determination of the Minister of Defense that a certain force is committing hostilities against the State of Israel or that the hostilities against the State of Israel have not yet ceased shall serve as proof in any legal proceedings, unless the opposite has been proven. Note that in [the A. v. State of Israel case, 2008] the arguments of unconstitutionality of these presumptions were not decided, as it arose from the State’s position that in practice, it tends to present proven factual basis regarding the personal dangerousness of every person regarding whom issuance of a detention order is requested, and that it has not yet relied upon these presumptions.
11. I am aware of the difficulty in a situation in which the law is employed against a person who has served his entire sentence. However, as clarified to me, the use of the law is most limited. In addition, this Court did not reject the possibility that there would be cases in which a person would be tried and sentenced in a criminal trial and serve his sentence, but that wouldn’t provide a sufficient response to the danger posed by him to the security of the State, and then a detention order pursuant to the law would be needed. … In my opinion, such weighty security considerations exist in this case, and the balance is attained via shortening of the period until the next judicial review, in which appellant’s case will be considered again, to the extent that a decision is made to renew the detention order against him.
[emphasis in original]
In its judgment in the Yesh Din case in 2010, concerning the matter of Palestinian detainees from the West Bank who are incarcerated in detention facilities situated in the territory of the Israel, Israel’s High Court of Justice stated:
3. The legal framework which allows detainees from the region to be held in Israel is anchored in the Emergency Regulations (Judea and Samaria and the Gaza Strip – Criminal Jurisdiction and Legal Assistance), 5727 – 1967 (hereafter: the Regulations or the Emergency Regulations), which were enacted following the capture of the region by IDF [Israel Defence Forces] forces, already in 1967. … Section 6 of the Regulations states:
6. Carrying out of punishment; arrest
(a) Where a person has been tried and sentenced by a military court, then, in so far as his punishment has not been carried out in the region, it may be carried out in Israel in the manner in which a punishment imposed by a court is carried out in Israel.
(b) Where a warrant of arrest or detention order has been issued against any person in the region, in exercise of a power conferred by a proclamation or order of a commander, such warrant or order may be carried out in Israel in the manner in which a warrant of arrest or detention order is carried out in Israel.
4. The question of the legality of holding persons as aforesaid is not new with us. It was adjudicated in this court in HCJ 253/88, Sajdiya v. Minister of Defense, P. D. 42 (3) 301 (1988) (hereafter: Sajdiya), a petition that attacked the legality of holding residents of the region in incarceration facilities in Israel; in the framework of the petition, the court also adjudicated the conditions in which the detainees were held in those facilities. It should be mentioned that, in that petition, the court specifically dealt with detainees who were then being held in the incarceration facility in Ketziot. The judgment in Sajdiya discussed at length the question of the legality of the holding of such residents from the perspective of provisions of the  Geneva Convention [IV], and the court construed the relevant provisions of the Convention, primarily article 49 of the Convention, which prohibits deportation and forced transfer from occupied territory to the territory of the occupying country. The justices in Sajdiya were divided with respect to the interpretation of article 49 of the Geneva Convention, but the decisive grounds for determining the legality of holding the residents as aforesaid was based on the provisions of section 6 of the Emergency Regulations, which, given its status as primary Israeli legislation, prevails over the provisions of international law.
6. It should first be said that we did not find sufficient reason to change the rule delineated in Sajdiya with respect to section 6 of the Regulations prevailing over provisions of the Convention. As for application of provisions of the Geneva Convention, from the time that the laws of occupation began to be applied on the region in 1967, the state has argued before the court that the Convention is treaty-based, and, in its view, judicial review of application of provisions of the Convention is made pursuant to the obligation to respect the humanitarian provisions of the Convention, which the state has taken upon itself as a matter of policy. Accordingly, the court examined the extensive case law with respect to the implementation of those provisions over the years. Now, the petitioners claim there has been a change of attitude, and it is accepted that the provisions of the Convention are part of customary law and therefore are binding. Regardless of the status of the Geneva Convention, we are prepared to accept the argument that it is necessary to examine the actions of the military commander in the region from the perspective of the Convention’s provisions, as the court has done over the years, and to respect its customary provisions as part of customary law (see, for example, HCJ 3278/02, HaMoked: Center for the Defence of the Individual v. Commander of IDF Forces in the West Bank, P. D. 57 (1) 385, 396–397 (2002) (hereafter: HaMoked); HCJ 5591/02, Yassin v. Commander of Ketziot Military Base, P. D. 57 (1) 403, 413 (2002 (hereafter: Yassin)). However, there is no dispute that, when an explicit statute in Israeli domestic law opposes rules of international law, even when customary law is involved, the Israeli law is dispositive (see Sajdiya, p. 815; Crim. App. 336/61, Eichmann v. The Attorney General, P. D. 16 2033, 2040–2041 (1962); and, for example, HCJ 256/01, Rabah v. Jerusalem Court for Local Matters, P.D. 56 (2) 930, 934 (2002)); HCJ 591/88, Taha v. Minister of Defense, P. D. 45 (2) 45, 52–53 (1991)). Therefore, and given that this reason is the main reason, as stated above, on which the decision hinged in Sajdiya, we did not consider the petitioners’ claims regarding the provisions of articles 76 and 49 of the Convention.
7. It should be said, in brief, that, based on the rulings of this court and the overall data before us, the interpretation given to the provisions of the Geneva Convention on the need to apply them to the region must be made in accordance with the circumstances and the special characteristics arising from the need to apply the laws of occupation in a manner that comports with the nature of the way in which the region is held, taking into account the long period of time that Israel has held the region, the geographic conditions, and the possibility of maintaining ties between Israel and the region. The purposeful interpretation that adapts the provisions of the Convention to the Israeli reality and to the conditions in the region requires, first and foremost, giving great weight to the rights of the protected population, which includes the rights of the detainees. This court has on many occasions dealt with the question of ensuring proper conditions for Palestinian detainees, whether they are detained in Israel or at the Ofer base, in accordance with the substantive criteria prescribed in the international conventions. …
9. … The petitioners’ argument, insofar as it is based on the specific conditions, unlike the provisions of the Convention, focuses on the detainees’ need, more than anything, for contact with their families; the petitioners contend that the closures and restrictions on movement from the region to Israel, which have been numerous in recent times due to security demands, prevent this vital contact inasmuch as the incarceration facilities are located inside Israel. …
10. Another argument raised by the petitioners involved the hearings on detention and extension of detention that are held by the military courts inside Israel, a practice that, they contend, violates article 66 of the Geneva Convention. This subject arose in this court in HCJ 6504/95, Wajiya v. State of Israel (hereafter: Wajiya), where the court held that the basis for the possibility of a military court adjudicating the matter of detention of residents of the region is found in section 6(b) of the Emergency Regulations. Although this section does not refer to the location of the court ordering the detention, it provides a substantive basis for the military court’s action. We did not deem it necessary to change the rule that was established in Wajiya, which this court has restated on other occasions (see, for example, HCJ 1622/96, Ahmad v. General Security Service, P. D. 50 (2) 749, 751 (1996)). The grounds for the holding are the same as those described above regarding the relationship between a provision of domestic law and a provision of international law.
11. … [I]n balancing the security interest in detaining a person, which the Convention also recognizes as necessary, with the need for transportation to the region, which is troublesome not only for the persons responsible for handling the transfer of the detainees but also for the detainees themselves, it appears that the existing solution, which comports with the arrangement prescribed in the Emergency Regulations and with the requisite substantive conditions for protecting the detainees’ rights, is the required solution, so long as the detainees are indeed held in Israel.
13. For the reasons described above, we did not find cause to re-examine the rules established in Sajdiya and Wajiya. We again emphasize that, regarding the conditions of detention and the substantive provisions of the Geneva Convention and of other international conventions regarding the holding of detainees, this court has clearly and unequivocally held that Israel must respect the provisions of international law, and that every detainee is be held in conditions that comport with his human dignity. …
14. Under the circumstances that have been created, it is necessary to pay heed to the practical significance of establishing new incarceration facilities, of the necessary magnitude, in the region following the withdrawal of IDF forces from the towns where facilities had been built. In the course of constructing the facilities in the region, the conditions in which the detainees are held might worsen, and the local residents in the areas in which the facilities would be built are also liable to be harmed. Application of provisions of the Geneva Convention must be done in accordance with a reality that the drafters of the Convention did not foresee. It is necessary to take into account also the geographic proximity of the region to Israel, and that holding the detainees in Israel does not automatically deny them family visits or legal assistance. It is necessary, therefore, to separate the obligation to implement the humanitarian provisions of the Convention with respect to the conditions in which the detainees are held from the claim as to the location in which the detainee is held, taking into account that the location of the detention was arranged years ago in Knesset legislation, the legality of which has been confirmed by decisions of this court, and considering that, given the conditions in which Israel holds the region and the current reality between Israel and the region, the holding of detainees in incarceration facilities in Israel does not violate the substantive provisions of international law.
In its judgment in the Issawi case in 2010, a judicial review of the administrative detention of a Palestinian from Gaza held under the Internment of Unlawful Combatants Law (2002), Israel’s Jerusalem District Court held:
7. The Internment of Unlawful Combatants Law, 5762-2002, determines an administrative detention arrangement whose purpose is preventative. It is forward facing. The cause for detaining a person pursuant to this law is the personal dangerousness of the person whose detainment is requested. The objective of the detention is prevention of his return to the cycle of hostilities. This was clarified very well in the 11 June 2008 judgment of the Supreme Court, which dealt with many various aspects of that law (CrimA 6659/06
A. v. The State of Israel).
8. The respondent’s alleged dangerousness is based predominantly upon the information and the evidence that existed against him before he was arrested more than six years ago. Not a lot has changed since then. Regarding the respondent himself, the evidence upon which the court is asked to determine his dangerousness today is, primarily, the same evidence that stood at the basis of the indictment filed against him in the military court in Gaza. As noted, the respondent served his entire sentence in that case … Thus, there is a great extent of overlap between the criminal proceedings that were conducted against the respondent and the administrative proceeding conducted against him pursuant to the Internment of Unlawful Combatants Law, 5762-2002. That fact raises difficulty, which was discussed by the Supreme Court in [the A. v. The State of Israel case.
10. Thus, the time factor is a factor which should be considered when determining whether a detainment order issued pursuant to the law should be left standing. The influence of the time factor upon the question of the dangerousness of the detainee can be manifest in the following two things: first, if there is basis to assume that the period during which the person was detained is likely to affect his desire and willingness to return to the cycle of hostilities after his release; and second, if there is basis to assume that the length of the period that the person was far from routine terrorist activity and from his fellow members from whom he was distanced is likely to affect the chances that the detainee will be reabsorbed into that activity, which might have undergone changes in the meantime. To that should be added that it is required that there be a fit between the substance of the suspicions against a person and the length of the period of his detention.
11. As mentioned, the respondent has been behind bars for a long time. It is but obvious that the as time passes, the system of balances changes, and the weight of the side of the scale upon which lie the considerations in favor of his release becomes heavier. In the case before us, the respondent has been detained since 8 February 2004, that is, a period of more than six years and two months. During 11 months of this period he has been detained pursuant to the Internment of Unlawful Combatants Law, 5762-2002. … We are dealing with a system of considerations with reasoning for, and reasoning against, continued detention. After having placed the considerations across from each other, I have reached the conclusion that at the present time the balancing point has changed, such that it must lead to release of respondent.
In 2006, in its fourth periodic report to the Committee against Torture (CAT), Israel stated:
Israel’s position on the applicability of CAT beyond its territory has been presented at length to the Committee on previous occasions and remains unchanged. In our view, the current procedure of administrative detention conforms with the principles of international humanitarian law, and indeed it has regularly been reviewed by the Israeli judicial system and the military legal system on this basis. Israel wishes to clarify that this measure can only be used on an exceptional basis when the evidence in existence is clear, concrete and trustworthy but for reasons of confidentiality and protection of intelligence sources, cannot be presented as evidence in ordinary criminal proceedings.