Case Number

CrimA 6659/06

Date Decided

6-11-2008

Decision Type

Appellate

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.]

Appeals challenging the decisions of the District Court who upheld the legality of the appellants’ arrests under the Internment of Unlawful Combatants Law 5762-2002 (hereinafter: the Act.) We are concerned with the private case of the appellants, residents of the Gaza Strip, who in 2002-2003 were arrested in an administrative arrest under the security legislation that applies in the strip, when as a result of the end of the military rule there in September 2005, the Chief of the General Staff issued the appellants’ arrest warrants under the Act. The Appeals raise general issues as to the interpretation of the Act and its compliance with humanitarian international law and as to the legality of its arrangements.

The Supreme Court (in a decision by President Beinisch and joined by Justices Procaccia and Levi) rejected the appeals and held that:

The Act authorizes State authorities to arrest “Unlawful Combatants” – whoever take part in warfare or are part of a force executing warfare activity against the State of Israel, and who do not meet the conditions to be given the status of war prisoners. The objective of the Act is to prevent such persons’ return to combating Israel; it does not apply to innocent civilians and it must be interpreted, as much as possible, according to international law. The Act’s arrest provisions must be examined with the attempt to realize the provisions of Basic Law: Human Dignity and Liberty as much as possible. The Act’s arrest authorities severely and extensively infringe an arrested person’s personal liberty, which is justified under the appropriate circumstances to protect the State’s security. However, in light of the extent of the infringement and the extremity of the arrest tool, the infringement upon liberty rights must be interpreted as narrowly as possible, so that it is proportional to achieving only the security purposes. The Act must be interpreted in a manner that complies as much as possible with the international law norms to which Israel is obligated, but according to the changing reality as result of terror.

The Act includes a mechanism of administrative arrest that is carried out under a warrant by the Chief of General Staff. Administrative arrest is contingent upon the existence of a cause for arrest that is a result of the arrested person’s individual dangerousness to the security of the State, and its purpose is preventative. The State must demonstrate through sufficient administrative evidence that that arrested person is an “unlawful combatant” insofar that he took significant part, directly or indirectly, in contributing to warfare, or that the arrested person was a member of an organization that carries out warfare activity and then to consider his link and contribution to the organization’s warfare activity, in a broad sense. Only after proving meeting the definition above may the State make use of the presumption in section 7 of the Act whereby releasing the arrested person would harm the security of the State, so long as it is not proven otherwise.

The right to personal liberty is a constitutional right. However, it is not absolute and infringing it may be required in order to protect other public essential interests. The Court must consider whether the infringement upon the right to personal liberty is consistent with the conditions of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, when it should be remembered that the Court does not easily strike down legal provisions. Under the circumstances, the extent of the infringement of the constitutional right to personal liberty is significant and severe. But the purpose of the Act, in light of a reality of daily terrorism is worthy, and therefore the legislature should be granted a relatively wide range of maneuvering in electing the appropriate means to realize the legislative intent. Considering this and additional factors, the Act meets the proportionality tests. Therefore the Act’s infringement upon the constitutional right to personal liberty is not to an extent beyond necessary, so that the Act meets the conditions of the Limitations Clause and there is no constitutional cause to intervene in it.

Israel should not have released the appellants, being residents of a liberated occupied territory, when the military rule in the Strip ended because the personal danger they pose continued in light of the ongoing warfare against the State of Israel. As for the individual incarceration warrants lawfully issued against the appellants, then the evidence reveals their tight connection with Hezbollah, their individual dangerousness was proven even without relying on the presumption in section 7 of the Act. There is no place to revoke the incarceration warrants.

Keywords

Administrative Law -- Discretion, Administrative Law -- Judicial review, Constitutional Law -- Basic Law: Administration of Justice, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Judicial review, Constitutional Law -- Prisoners' Rights, Constitutional Law -- Separation of Powers, International Law -- Customary Humanitarian Law, International Law -- Detention of Powers, International Law -- International Humanitarian Law, International Law -- Occupied territories, International Law -- Laws of war

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