Marab et al. v IDF Commander in the West Bank et al.

Court	Supreme Court of Israel, Israel
Case number	HCJ 3239/02
Decision title	Judgment
Decision date	5 February 2003
Parties	Iad Ashak Mahmud Marab Ahsan Abed Al Ftah Id Dahdul Weesam Abed Al Ftah Id Dahdul Center for the Defense of the Individual founded by Dr. Lota Salzberger B’tselem – The Israeli Information Center of Human Rights in the Occupied Territories The Association for Human Rights in Israel Physicians for Human Rights Adalah - The Legal Center for Arab Minority Rights in Israel Kanon – The Palestinian Organization for the Protection of Human and Environmental Rights Public Committee Against Torture IDF Commander in the West Bank Judea and Samaria Brigade Headquarters
Categories	War crimes
Keywords	detention, law of armed conflict
Links	Judgment

Summary

As part of an operation to prevent attacks on Israeli citizens, the IDF Military Commander in the West Bank issued several Orders to allow the IDF to detain groups of people for periods up to 18 days without the possibility to appeal to a judge or to consult legal counsel.

The Supreme Court held that the military commander is allowed to detain persons if they are considered to be dangerous to the security, but that this authority should be balanced against the liberty of the individual. The Military Commander’s orders allowed for detainees to be held for a minimum of 12 days without judicial reviews and this was considered by the Court to be illegal. Also, the Court stated that investigations should start in an earlier phase of detention. However, the Court also stated that the IDF could prohibit a detainee for meeting with his lawyer because of security considerations. All in all, the Court struck down the disputed orders.

Procedural history

A petition was filed against Orders 1500, 1502, 1505, 1512, and 1518, which allowed that a suspect could be detained for periods up to 18 days without appearing before a military judge. During this period, he could also be denied legal counsel. Petitioners argued that this arrangement conflicted with Israeli law, international humanitarian law and human rights law. The petitioners claimed that international law recognizes only two types of detentions: regular “criminal” detention and preventive detention (internment). According to the petitioners, the Orders created a third type of detention: prolonged mass detention for the purpose of screening the detainees. This third type is not recognized by international law and is unlawful. The State responded that under the circumstances it was almost impossible to distinguish between members of terrorist organisations and innocent civilians. Therefore, persons found at sites of terrorists activity or combat, under circumstances which raised the suspicion of their involvement in these activities, were detained. Because the existing detention framework was not suitable for this, the new Orders had to be introduced.

Legally relevant facts

In the context of ‘Operation Defensive Wall’, initiated at the end of March 2002, the IDF forces entered various areas of the West Bank with the intention to detain wanted persons as well as members of several terrorist organisations. As of 5 May 2002, about 7000 persons had been detained in the context of this operation. Among those detained were persons who were not associated with terrorism; some of these persons were released after a short period of time. Initial screening was done in temporary facilities. During the early stages, these detentions were carried out under the regular criminal detention laws of the area, though it became soon clear that this did not provide a suitable framework for screening thousands of persons detained within a number of days. Therefore, the IDF commander in the West Bank issued several orders, of which the legality is disputed in this case (paras. 1-2).

Core legal questions

The main question to be answered in this case was whether the Orders issued by the IDF commander - regarding mass detention, screening of detainees, the lack of any possibility of judicial intervention and the prevention of meeting with lawyers - were legal.

Specific legal rules and provisions

Article 43 of the Annex to the Hague Convention Regulations Respecting The Laws and Customs of War on Land.
Articles 27, 64 and 78 of the Third Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
Article 5(3) of the European Convention for the Protection of human Rights and Fundamental Freedoms.
Articles 9.1, 9.3 and 14.3 of the International Covenant on Civil and Political Rights.
Art. 15(d)(1) of Basic Law: The Judiciary.

Court's holding and analysis

The Court held that the military commander has the authority to detain persons considered harmful to the security and that he may also set regulations concerning detention for investigative purposes. Still, both international law and domestic law demand that this authority be balanced against the liberty of the individual (paras. 20-21).

The Court stated that postponement of judicial review for a minimum of 12 days was illegal, as it did not represent the appropriate balance between security needs and human rights (para. 34). Also, the Court held that both Israeli and international law contain the principle that meetings between detainees and attorneys should be permitted (para. 43). However, there may be security considerations which prevent this. Therefore, the Court did not object to this part of the Orders.

However, the Court did object to the period of detention without investigation. Israel’s argument that there was a lack of professional investigators was rejected, as the Court considered that society should invest in increasing the number of investigators to balance security and individual liberty (para. 48). Thus, the Court struck down Order 1500 and its amendments, but delayed the enforcement of the ruling in order to allow the security forces to deal with the ramifications.