Case Number

HCJ 3239/02

Date Decided

2-5-2003

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Following the activity of the IDF against the terror infrastructure in the territories of the Palestinian Authority (“Protective Shield” operation), the number of West Bank residents who were arrested by the IDF forces as suspects for involvement in terrorist activity has sharply increased. In order to give legal resolution for the need to handle the arrest and investigation procedures of thousands of suspects, the First Respondent issued on April 5, 2002 a special order – the Order regarding Arrests During Times of War (Provisional Order) (The West Bank) (n. 1500) 2002 (hereinafter: Order 1500). The Order authorized an office to order in writing the arrest of a suspect for a period of 18 days (hereinafter: the arrest period) without the approval of a jurist judge and without possibility of judicial review over the arrest during this period. Additionally, the Order barred the arrestees from meeting with a lawyer during the period of arrest. The arrestee’s right to voice arguments against the arrest (at the outset of the initial investigation) was limited by first establishing that the investigation may delayed for up to eight days from the day of the arrest. In a later order issued by the First Respondent, the arrest period what shortened to twelve days, the longest period until the investigation would commence was reduced to four days, and the prohibition over meeting with a lawyer was set to only four days from the day of the arrest (rather than the entire length of the arrest period.)

The Petitioners challenge the legality of the orders issued by the First Respondent, arguing that the do not meet the demands of international treaties and of international law that apply to arrest during time of war, as well as the requirements of Israeli administrative law. The Petitioners also argue that Order 1500 created a new type of arrest that is distinct from a criminal or administrative arrest in that it treats mass arrests without an individual cause for arrest.

The Supreme Court held:

A. 1. An arrest for purposes of investigation infringes upon the liberties of the arrestee. At times there is no alternative to this be it in order to prevent obstruction to the investigation or be it in order to ensure the safety of the public and its welfare. A delicate balance is therefore to be struck between the liberty of the individual (who enjoys the presumption of innocence) and the safety of the public and its welfare. This is true both in regard to the balance within the state (between the citizen and her country) and in regard to the balance outside of the state (between an arrestee in a territory under warfare occupation and the occupying state). This is so as to the balance at times of peach and as to the balance at times of war.

2. The proper balance between the individual’s liberty and the needs of the public justifies in certain cases the denial of liberty. Within such balance it is required that the arresting authority has evidentiary foundation for the individual suspicion against the arrestee. This is so in “ordinary” criminal arrest; and it is so in administrative arrest. In all cases, we must bear in mind that arrest without a finding of criminal responsibility must take place only in extreme cases.

3. In the Petition at hand there is no need to determine the extent of the application of Israeli arrest laws on an arrest made in the area because the internal Israeli rules fit those of international law as it applies to the matter.

4. There is not particular provision in the Geneva Convention Relative to the Protection of Civilian Persons in Times of War 1949 (hereinafter: the Fourth Geneva Convention) that addressed the authority of a commander to order an arrest for purposes of arrest, but this authority derives from the local law, and it is included in the area commander’s general authority to preserve order and safety. This law may be revised under certain conditions through security legislation. This legislation must reflect the necessary balance between the liberty of the individual in the occupied territory and the security needs in the occupied territories.

B. 1. The definition of the term “arrestee” in the security orders subject our discussion here reveals that an arrest according to these orders may only be made when there is a “cause for arrest”, that is when the circumstances of the arrest raise suspicion that the arrestee poses, or may pose, a security risk.

2. Therefore, one cannot be arrested merely because he was arrested during war. A person may not be arrested only because he is in a house or a village where there were other arrestees. It is required that the circumstances of the arrest are such that they may raise for him – him individually rather than any other – a concern for a security risk whether because her was arrested in the combat zone when he is an actual combatant or executor of terrorist activity, or because there is a concert that he is involved in combat or terrorism.

3. It was found that in its essence Order 1500 (and its revisions) belongs to the family of arrest for purposes of investigation. It was designed to prevent obstruction of investigation due to the escape of that arrestee which the circumstances of whose arrest raise a concern that he poses a security risk or in order to prevent a security risk because he is walking free. The difference between this and the ordinary criminal arrest is only in their circumstances. An arrest under Order 1500 takes place in circumstances of war, whereas the ordinary criminal arrest takes place in circumstances of a policing incident. In both situations there is an individual arrest based on an evidentiary foundation that creates a personal suspicion against the arrestee.

4. For these reasons, the Petitioners’ argument that the security orders in question create a new cause of arrest (mass arrest) in the security legislation must be rejected.

C. 1. Judicial intervention in arrest procedures is essential in order to protect individual liberties, thus the provisions of international law instruct that arrestees must be brought before a judge without delay.

2. The principle that mandates bringing arrestees immediately applies to an arrest in the circumstances of war as well. Indeed, it should not be required that the initial investigation take place in conditions of war, and certainly it cannot be required that a jurist judge accompany the combating forces, instead the beginning of the investigation ought to be delayed and in any event so should the judicial involvement, until after the arrestees are brought to a location outside the battlefield, where an initial investigation may properly be conducted, and in any event so may judicial involvement. However there is nothing in the above to negate the application of the principle regarding arrest in circumstances involving war.

3. The approach at the basis of the relevant security orders, and according to which the meeting between the arrestees and a judge is delayed for a period of 18 days (or 12 days according to the revising order), is based on the assumption that the initial investigation of the arrestees must be completed before they are brought before a judge. This approach is inconsistent with the fundamental view of the law (both international and Israeli) that judicial involvement is an integral part of the arrest procedure and everything must be done so that it takes places as early as possible.

4. As a result, the provisions regarding judicial involvement in the arrest procedure which are included in the Order 1500 (and its revisions) are unconstitutional and struck down, and the Respondents must establish in this regard a different time frame consistent with the fundamental principles that apply to the issue.

D. 1. The legislative framework under which the lawfulness of the arrangement regarding meeting with a lawyer must be examined – whether by international law or by the basic tenats of the Israeli law – is the principle that as a general rule an arrestee must be permitted to meet with their attorney. This results from every person’s right to personal liberty. However, the right to meet is not an absolute right and thus the meeting between the arrestee and the attorney may be prohibited should important considerations of the area’s security justify preventing the meeting.

2. In light of this, the Respondents are authorized to prevent meetings between arrestees and their attorneys if holding such meetings may harm state security.

3. The arrangements currently established by the security orders as to the set of decisions and approvals regarding allowing the meeting between the arrestee and his attorney fulfill the general principles applicable to the matter, and thus there is no flaw in their lawfulness.

E. 1. Naturally, no investigation should be conducted – and in any event the position of the arrestee should not be heard – during wartime or during combat activity. Similarly, it is acceptable that when the number of arrestees is great, some time may pass until it is possible to get organized at the interrogation facility in preparation for the initial investigations.

2. And yet all the above does not lessen the Respondents’ duty to swiftly begin the initial investigation following the arrest. A quick commencement of the investigation is particularly important in this early stage, because this is where simple facts (such as age, the circumstances of the arrest, identity) which may determine one way or another the continuation of the arrest may be made clear.

3. Therefore, the arrangement established in the security orders in question, whereby an arrestee may be held in arrest up to eight days before the beginning of his initial investigation, is unlawful.

Keywords

International Law -- Detention of prisoners

Download

Share

COinS