More on the Israeli Model

by Amos Guiora

[OJ ed. Note this post was submitted before comments to Mr. Guiora’s first post were received.]

In Monday’s post, I presented the fundamental principles of administrative detention. Today, I will discuss the process and considerations when to apply the measure as developed over the course of years in Israel with respect to a specific individual. The measure is applied in the West Bank by order of the military commander (Israel has never annexed the West Bank) and in Israel proper by the Minister of Defense. In both, the decision is subject to judicial review (in the West Bank by two military courts and the Israeli Supreme Court; in Israel by the Tel Aviv District Court and by the Israeli Supreme Court).

As to the process: when the security forces (Israel Security Agency, ISA; formerly known as General Security Services) receive intelligence information suggesting a specific individual’s involvement in terrorism the following options are ‘on the table’:

1) Arrest for purposes of initiating a criminal law process (detention-interrogation-trial)
2) Arrest for purposes of administrative detention (detention-hearings)
3) Not arrest (monitor/surveillance).

If the ISA chooses to recommend the commander impose administrative detention on the individual, then the military commander’s legal advisor is requested to review the intelligence information in order advise the commander whether to adopt the recommendation. In my postings as senior security advisor to the West Bank Legal Advisor (1990-1992) and Gaza Strip Legal Advisor (1994-1997), I was asked to review ISA recommendations to military commanders regarding Palestinian residents of the West Bank and Gaza Strip. My recommendations were either to:

1) Accept the ISA’s detention recommendation and if yes, whether to affirm the ISA’s recommendation regarding length of detention (up to six months); OR
2) Reject the ISA recommendation and recommend either not to detain the individual or to arrest for purposes of initiating a criminal law process.

My recommendations (to the commander) were based on the following considerations:

1) Quality of intelligence and source reliability/credibility (this required expert opinion by an ISA official);
2) Timeliness/staleness of the intelligence information (this required expert opinion by an ISA case agent);
3) Previous activities of the individual (this required review of the intelligence dossier prepared by the ISA);
4) Impact on the individual’s immediate community; this was of particular relevance if the individual was a highly regarded/respected leader (this required expert opinion by an ISA official);
5) NGO response (while Israeli and international human rights organizations were unanimous in their criticism of the measure, there was additional sensitivity with respect certain categories including women, ‘people of prominence’, and attorneys);
6) Severity of the danger posed by the individual (this required expert opinion by an ISA official);
7) Whether the intelligence information could be declassified and the individual interrogated thereby enabling initiation of the criminal law process;
8. Danger to the source/s were the information to be declassified (this required expert opinion by an ISA official);
9) Whether the Israel Supreme Court (sitting as the High Court of Justice) would intervene in the commander’s decision.

Were I to affirm the ISA’s recommendation then the intelligence dossier and my recommendations were brought before the commander; if the commander accepted my recommendation the individual would be detained in accordance with the signed order which included a short description of the order’s justification (largely a general statement regarding the individual’s activity).

As I shall discuss in subsequent postings, the orders are subject to judicial review (military court and Israel Supreme Court).

6 Responses

  1. Taking judicial review chances into account is not uncommon. Considering the reactions of NGOs, however, is certainly not trivial. I’d appreciate it if Prof. Guiora could elaborate on this issue.

  2. Sorry, I meant “judicial intervention chances”.

  3. Response…
    If I understand Guy’s comment correctly the issue raised addresses judicial intervention by the Israel Supreme Court (sitting as the High Court of Justice) with respect to decisions by the executive. (As Israel never annexed the West Bank or Gaza Strip the executive is the IDF). According to a 1968 legal opinion by the then Attorney General (Meir Shamgar) Palestinian residents (or those acting on their behalf) of the West Bank and Gaza Strip have the right to petition the High Court of Justice with respect to actions of the executive (IDF) that affects their rights. As a result of this opinion Palestinian’s have consistently filed petitions against the IDF/commanders; many of the petitions have led the High Court of Justice to directly intervene in commander’s decisions relating to the West Bank and Gaza Strip. Accordingly, commander’s have increasingly come to weigh the Court’s possible intervention in their decision making process. As a result, commanders have made operational decisions different than they otherwise initially intended or considered. I have suggested elsewhere that the Israeli judicial paradigm as articulated by the former President of the Supreme Court, Aharon Barak, is a model of judicial activism in the context of operational counterterrorism.

  4. Thank you. Actually, I was wondering about the role of NGO responses in your considerations. I apologize for not being clear in the first place.

  5. Response…
    Thanks for your clarification/sorry for not understanding; there was/is sensitivity to NGO responses (provided they were balanced) though do not believe it accurate to conclude that NGO’s affected policy decision making.

  6. Thank you, Prof. Guiora.

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