It is commonly held that the role of Israel’s Supreme Court, sitting as the High Court of Justice (HCJ), is to provide recourse for ordinary citizens who believe their rights have been trampled upon by the authorities. Under this common perception the HCJ is the defender of civil rights, a counterforce against the regime’s crushing power. This is not accurate: the HCJ’s formal role is not to defend liberty, but to judicially review the conduct of administrative and judicial authorities. It may instruct them to leave a person be, but it can also instruct them to place restrictions on him. State authorities may also turn to the HCJ against each other. So, for example, the military commander in the OPT can petition the HCJ against the military courts he appointed and complain to the court that they refuse to deny the liberty of a resident of the OPT. Can petition, does petition and prevails. Walid Hanatsheh has the scars to prove this.
The military commander can petition the HCJ against the military courts he appointed and complain that they refuse to deny the liberty of a resident of the OPT. Can petition, does petition and prevails
Walid Hanatsheh was arrested in June 2002 for illegal presence in East Jerusalem: his wife is a Jerusalemite and on the day of his arrest he was taking his daughter to the doctor’s office.
[1] The arrest for illegal presence turned into an administrative detention on the claim that he is an activist in the Popular Front for the Liberation of Palestine (PFLP). The detention was periodically extended and lasted for many years. An administrative detention order (and one extending a previous order) is signed by a military commander (effectively according to a decision of the Israel Security Agency (ISA)). A detention order can be issued for a period of up to six months each time. After the military officer signs the order, it is reviewed by a military judge. His decision may be appealed in the military court of appeals. This last decision can be appealed in the HCJ.
After over two years of administrative detention, military judges began voicing reservations regarding Hanatsheh’s continued arrest. In October 2004, a military judge decided to uphold an extension of the administrative detention but wrote that alternatives to the detention must be considered. In December 2004, another extension was approved, but the judge wrote that barring extraordinary events, it would be difficult to justify the detention any longer. In March 2005, when reviewing yet another extension, another judge wrote that despite the severity of the information against Hanatsheh, it is not current and balance leads to the conclusion that:
[T]here is room to seriously consider the release of the detainee from administrative detention. However, and only due to the sensitive period[2]… I am of the opinion that there is room to have the detainee remain in administrative detention for another short period of time… barring any extraordinary developments, it will be extremely difficult to justify his continued arrest.[3]
In May 2005, another judge ruled that the old material against Hanatsheh did not justify his continued arrest for a period exceeding one more month. The military judge decreed that the reduction of the order is “substantive”, namely, the decision to reduce the order could not be bypassed by issuing a “new” order – unless new developments occur or new information is uncovered which may substantively alter the basis for the decision.
[4] Three years after his arrest, Hanatsheh was finally to be released.
And lo, after three years of administrative detention during which no further information against Hanatsheh was received, the ISA suddenly came across some new information, and claimed it was substantive and changed the situation. Hanatsheh’s detention order was extended on the basis of this new information. While the previous extensions were all for three months, this time, the order was extended for five whole months. However, the information did not impress the judge who reviewed the administrative detention order and he decided not to uphold it. In his words:
[T]he new information received does point to details of actions thus far unknown, yet these are insufficient to substantively alter the existing intelligence picture … the new information does include details which illustrate the detainee’s modus operandi during his incarceration, yet a review of preexisting information indicates that some of this activity had already been known, and the rest may be reasonably deduced from the detainee’s status as a senior PFLP operative.[5]
The military commander appealed the decision before the military court of appeals. Another military judge reviewed the material and upheld the decision that it did not substantively change the situation with respect to Hanatsheh and did not justify extending his detention.
[6] After so many decisions by military judges, all pointing in one direction, the military commander’s attempt to avert the decree and keep Hanatsheh behind bars seemed useless, particularly in view of the HCJ’s tendency not to intervene in the decisions of the military courts. Defense lawyers for administrative detainees are all too familiar with the court’s approach, expressed also in the following ruling:
Intervention in the considerations of the military courts, which carry out their duty while living the reality on the ground on a daily basis, is an exceptional matter.[7]
Yet, when the petitioner is the military commander rather than the Palestinian detainee, the exceptional happens. The Supreme Court did not find the decisions of the military judges earth shattering. On the contrary, it seems the court held that the scales were not far from balanced:
After studying and reviewing the matter, we maintain that the current confidential information substantively increases the information against the respondent [i.e., the detainee, Y.W.], and indicates a threat level greater than previously known to the petitioner [i.e., the military commander, Y.W.]. Indeed, the level of threat is not measured with an accurate level that can be quantified with a computer program; its evaluation is a cumulative result of impressions drawn from various materials. We have examined, inter alia, the weight of the new material in the context of the tension and security sensitivities characteristic of this period and of the immediate future and we have come to the conclusion that in this case, the information tips the scales in favor of some extension of the detention...[8]
One might have expected that decisions by the authorities which restrict liberty, particularly by such a measure, would be put to extremely rigorous judicial scrutiny
It seems that the justices agree that the material could have led to the opposite conclusion. If so, the ruling lacks reasoning why the intervention of the HCJ is required in the decisions of the military instances which, to put it in the court’s words, live the reality on the ground on a daily basis and have gained extensive experience in evaluating such materials. The reference to the security sensitivities of the period
[9] does not bolster the HCJ justices’ conclusion, as it was known also to the military judges. The HCJ struck down the decisions of the military courts to release Hanatsheh, but reduced the five-month order to the standard duration of the previous orders – three months.
Administrative detention is an exceptional measure. It restricts a person’s liberty without providing him with a real chance of defending himself. One might have expected that decisions by the authorities which restrict liberty, particularly by such a measure, would be put to extremely rigorous judicial scrutiny; or, one might have expected that the court’s intervention in a military court’s decision to release a person from such detention would be made (if at all) only in cases of extreme unreasonableness, where a severe threat to public security is posed. This does not seem to be so in Hanatsheh’s case.
Adv. Yossi Wolfson The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
