HCJ 3278/02
1.
The Center for the Defense
of the Individual founded by Dr. Lota Salzberger
2.
Adalah – The
3.
The Association for Civil
Rights in
4.
B’tselem – The
5.
Kanon – The Palestinian
Organization for the Protection of Human and Environmental Rights
6.
Addameer – Prison Support
and Human Rights Association
7.
Alhak – The Law in Service
of Human Rights
v.
Commander of the IDF Forces
in the
The Supreme Court Sitting as the High Court of Justice
[
For the petitioners—Dan Yakir; Leah Tzemel; Tarek Ibrahim; Yossi Wolfson; Hisham Shabaita
For the respondents—Shai Nitzan
JUDGMENT
Facts
1. Beginning in September of 2000, there was an
increase in Palestinian terrorist activity against the Jewish community in
Judea and
2. Within the framework of Operation Defensive
wall, the army carried out a wide-ranging operation of detention. The IDF
entered Palestinian cities and villages and detained many suspects. At the height of the activity about 6000
people were detained. Initially, the
detentions were carried out in accordance with the standard criminal detention
laws of the area, specifically Security Regulations Order 387 (Judea and
Petitioners’
Arguments
3. The petitioners complain about the detention
conditions at both the temporary facilities and at Ofer camp. Regarding the temporary facilities, the
petitioners claim that the detainees were forced to sit on the ground with
their heads bent and their hands down, and that their hands were handcuffed in
a rough manner, which caused fierce pains and bruise marks. Furthermore, petitioners claim that the
detainees' eyes were covered, that, if they moved or raised their heads, they
were exposed to the physical and verbal abuse of the supervising soldiers, that
they remained in this difficult position for hours, and that, during this time,
they were exposed to the rigors of the weather and were unable to sleep. Petitioners further assert that detainees
were deprived of sustenance, that, though they were permitted to go to the
bathroom, permission was not often granted, and that there was no documentation
of the possessions that were taken from the detainees, including ID cards,
cellular phones and cash.
4. The petitioners also complain about the
inhumane conditions at Ofer Camp. They
claim that the facilities are exceedingly overcrowded. The detainees were transferred into tents or
“shelters," which do not shield the detainees against the rigors of the
weather. The detainees were not supplied
with sufficient mattresses, nor were the mattresses that were supplied of
reasonable quality. Furthermore,
petitioners assert that the detainees did not receive enough blankets, and that
the food that they were provided with was insufficient and of poor
quality. Meals were served in small
bowls, without plates or other eating utensils.
They were not provided with clothing.
There were not enough bathroom stalls, nor were they supplied with
sufficient toilet paper. The showers did
not have hot water, nor was there sufficient soap. Furthermore, they assert that, other than
painkillers, they received no medical treatment.
5. The petitioners ask that we order the
respondent to provide minimal humane detention conditions – which will be
reasonable and appropriate – both during the first stage of detention at the
temporary facilities and also during the second stage of detention in Ofer
Camp. These conditions must be both
suitable and respectable. The petitioners
also ask that we order the respondent to allow representatives of human rights
organizations to visit Ofer Camp and observe the conditions of detention
provided there.
Statement
of the State Attorney
6. In the response brief submitted on 24.4.2002,
the respondent notes that, at the beginning of Operation Defensive wall, due to
the large number of persons being detained, it was impossible to immediately
provide all of the detainees with completely suitable detention conditions. Therefore, for a relatively short period of
time, not all of the detainees were provided with completely acceptable
detention conditions. Nevertheless, the
army equipped itself very quickly. Most
of the temporary facilities were shut down.
The conditions in Ofer Camp were improved such that all of the detainees
are now provided with reasonable detention conditions which meet the standards
recognized by both Israeli and international law.
7. Regarding the conditions in the temporary
facilities, respondent notes that the detainees remained there only a short
period of time – usually for only a few hours, and no longer than
forty-eight. There, the detainees went
through preliminarily interrogation and tentative screening. Respondent notes that the temporary
facilities were not equipped for long-term detentions and the conditions there
provided were absolutely minimal.
Nevertheless, respondent noted that to the best of his knowledge, the
detainees had been supplied with drinking water, sustenance and medical
treatment by doctors on location. The
detainees had access to the bathrooms. Regarding the handcuffs, it was
emphasized that the manner of handcuffing the petitioners complain of is
prohibited, and that soldiers have no permission to employ such methods. Respondent asserts that each complaint will
be dealt with individually. Regarding
the failure to document the possessions seized from the detainees, it was noted
that at the beginning of the period there had apparently been deficiencies in
the matter, due to the lack of awareness of those running the facilities. The situation was quickly remedied, with an
order being issued to precisely document of all possessions seized from
detainees. To the best of the
respondent’s knowledge, this order has been implemented. With respect to the complaint that the
detainees should be held in a shelter shielded from the weather, the respondent
points out that the temporary facilities were intended to hold detainees for
very short periods of time. Some of the
detainees were provided with shelter, whether in tents or in permanent
buildings. With regard to the claim that
the detainees were subject to the verbal and physical abuse of the soldiers,
respondent asserts that such activity is prohibited. He adds that the detainees can complain about
such matters to the commanders in the respective facilities.
8. As to Ofer Camp: respondent asserts that some
of the detainees were moved there after an initial screening at the temporary
facilities. When the temporary
facilities were shut down, all of the detainees were moved to the Ofer
Camp. Between 29.03.2002 and 22.04.2002,
over the course of about three weeks, about 3,000 detainees were brought to the
facility. After being screened and
interrogated, about 1,420 of those detained were released, a figure that is
correct as of 22.04.2002. About 240
detainees had been moved to other detention facilities as of that date, such
that by 24.04.2002 approximately 1,340 detainees were being held in Ofer Camp. Ordinarily, Ofer Camp has the capacity to
hold about 450 detainees. The facility
is divided into five “detention divisions." Five tents, designed to hold 100 detainees
each, are located in four of these divisions.
Three tents are located in the fifth division, each designed to hold
fifty persons.
9. The number of detainees transferred to Ofer
Camp upon its opening greatly exceeded its standard or expanded capacity. In
its standard capacity, Ofer is designed to hold 400 persons. In its expanded
capacity, it is designed to 700 detainees, such that thirty, instead of twenty,
detainees reside in each tent. A severe
situation of overcrowding developed. In
order to resolve this problem, four permanent shelters were quickly erected,
using beams which had been found in the facility. These were to provide temporary shelter for
detainees. These shelters were equipped
with wooden beds and chemical bathrooms.
Later, showers were also installed in the shelters. The shelters were prepared within a number of
days. Thus, the most severe overcrowding
problem, which had caused some detainees to remain without shelter for a short
period of time, was temporarily resolved.
10. Along with the above-mentioned activity, three
days after the initiation of Operation Defensive wall, a decision was made to set
up seven additional detention divisions in Ofer Camp. These areas were opened on 24.04.2002. They are designed to hold about 500
detainees. The detainees who had been
residing in the shelters were moved to these divisions. Two more divisions are
scheduled to be opened within the next few days. Detainees who are currently being held in the
other detention divisions will be moved to the new divisions, thus relieving
the overcrowding in the other facilities.
The respondent is of the opinion that the facility, after being so
expanded, provides reasonable detention conditions.
11. The respondent extensively covered the issue of the detention conditions at Ofer Camp. According to the respondent, as stated, since
the completion of the construction activities on 24.04.2002, the issue of
overcrowding no longer presents a problem.
There are three bathrooms and three showers located in each of the
detention divisions, and the water in the showers may be heated. The detainees
are supplied with toilet paper, soap, toothbrushes and shaving brushes. The detainees sleep on wooden beds with
mattresses, which are the same as those used by the IDF. Initially, the number of blankets available
was insufficient. This problem was
solved within a number of days, and each detainee is now supplied with at least
three or four blankets. Regarding the
issue of clothing, each detainee was originally supplied with one change of
clothes. However, due to the large
number of detainees, many of them soon found themselves lacking extra sets of
clothing. This problem was resolved on
23.04.2002, when a sufficient quantity of clothing arrived at the
facility. As of the time the response
was submitted on 24.02.2002, each of the detainees had received at least one,
if not two, changes of clothes. Each of
the detainees is provided with a coat.
Regarding the issue of sustenance, during the first few days of the
facility’s operation, the food lacked in quantity and variety. Within a matter of days, a sufficient amount
of food was brought into Ofer Camp, and there is no longer a deficiency in the
food supply. The food supplied is now
sufficient and varied. A doctor is
always available on location. As part of
his reception into the facility, each detainee undergoes a medical examination.
Medical inspections are regularly carried out.
When it becomes necessary, detainees are moved to a hospital. After arriving at the facility, each detainee
receives a postcard and is allowed to communicate the details of his detention,
including his location, to his family.
These postcards are transferred to the Palestinian Authority. Ofer Camp has two tents in which detainees
may meet with their attorneys. Since
14.04.2002, the Red Cross has been allowed to enter the facility, and their
representatives have been visiting the site without restriction. They converse with each of the detainees in
the facility. They meet with the
commanding officials and relate their comments about the detention conditions.
12. The respondent concluded by objecting to
allowing the petitioners’ attorneys to visit Ofer camp. He claimed that there are no legal grounds
for such a request. As noted,
representatives of the Red Cross visit the facility freely, and this ensures
that an outside, international body supervises the facility.
The
First Hearing –
13.
Upon receiving the
respondent’s response brief, we held the first hearing in this matter. The petitioners emphasized that the army
should have prepared itself for the large number of persons who were to be
detained, and that this oversight was a consequence of the army’s disrespect
towards the fundamental rights of the detainees. The petitioners complained about the sleeping
difficulties caused by the wooden beds and thin mattresses. Three blankets are insufficient. The food is occasionally served cold. The
detainees do not receive hot drinks.
Petitioners reiterated their request that the petitioners' attorneys be
allowed to visit Ofer Camp. The
respondent stated that, regardless and independent of this petition, the army
has learned the necessary lessons from its initial experiences. The facility is
no longer overcrowded and its occupancy is decreasing daily. The sleeping conditions match the IDF
standards. Each of the detainees
receives four or five blankets, and upon request is provided with additional
blankets. The food provided is
sufficient and is in accordance with IDF nourishment charts.
14. During the oral arguments we asked whether the
respondent would allow the petitioners’ attorneys to visit Ofer Camp. The respondent pointed out that the attorneys
do not have visitation rights.
Nevertheless, petitioner agreed to allow a joint visit, with both
himself and the petitioners, to the facility.
At the end of the hearing, we decided to postpone this proceeding to a
later date. We noted before us that five
representatives of the petitioners would be permitted to visit Ofer Camp, along
with the respondent’s attorney. We
ordered that within five days after the visit, the petitioners’ counsel should
submit a statement. The respondent would
then be granted five additional days to submit his response. We decided that the petition would be decided
based on the contents of those statements.
15. Implementing the decision to allow the visit
raised a number of difficulties. During
their visit, petitioners’ counsel requested that they be allowed to converse
directly with the detainees. The
respondent asserted that the visit was being allowed ex gratia, and
that he had initially indicated that the visitors would not be allowed to
converse with the detainees. He added
that one of the petitioners’ representatives, who had requested to meet with
the detainees, was charged with disruption of legal proceedings for relaying
messages illegally. The petitioners’
attorneys could learn of the detainees’ complaints from their individual
lawyers, who are in constant contact with them.
In light of this response, the petitioners’ attorney refused to proceed
with the visit. They requested that we
order the respondent to allow the petitioners’ attorneys to meet with
representatives of the detainees during their visit. We decided to advise the parties, on
8.05.2002, that military personnel in the facility escort the visitors during
their visit and decide, in exercise of their discretion, whether to allow the
visitors to meet with representatives of the detainees.
16. Petitioners’ attorneys visited Ofer Camp on
22.05.2002. Representatives of the State
Attorney, the Judge Advocate-General and the commanders of the camp also
attended. The visit included entrance
into a standard detention division where the detainees reside and the detention
division where the kitchen is located.
Petitioners’ attorneys were permitted to speak with a number of the
detainees’ representatives. The
respondent informed us that, despite the agreement between the parties, the
petitioners’ representatives spread out among the tents and began talking to
various detainees, disregarding the pleas made by the respondent’s
representatives.
17. After the visit we received supplementary
statements from both parties. The
petitioners noted that the physical conditions of the camp had been improved
since the petition had been submitted.
Nevertheless, the visit – which did not allow detailed or thorough
observation of detention conditions – revealed a long list of issues which have
yet to be resolved. According to the
petitioners, the following principle problems surfaced: detainees do not
receive sufficient medical treatment for their illnesses; the tents are
overcrowded; twenty two detainees are held in each tent; other than the
sleeping areas, there is no room for the detainees to move around; it is
difficult to sleep on the thin five centimeter mattresses of the wooden beds;
the heat in the tents is unbearable; the three showers and three bathrooms in
each division are insufficient; the maintenance of the stalls is
deficient; the quantity of clothing
provided is insufficient; the detainees
are not provided with games or reading materials, save the Koran. The petitioners' attorney listed other
problems in a separate letter to the respondent.
18. In his supplementary statement, the respondent
complained about the behavior of petitioners’ counsel during their visit in the
Camp. His response also addressed the
claims made by the petitioners.
Regarding medical treatment, he noted that there is an infirmary in Ofer
Camp, which employs a large staff of five doctors, medics and pharmacists. The stock of medications is sufficient. A doctor or medic inspects every detainee as
is necessary. When the medical treatment
offered by the facility does not suffice, the detainee is moved to a
hospital. With regard to the crowding in
the tents, at the time of the visit 900 detainees were residing at the facility. At most, each tent held twenty-two
detainees. The area of each tent is
sixty square meters. The wooden beds are
lined up along both sides of the tents.
In the center of the tents, there is an empty space 1.4 meters wide for
passage. The number of bathrooms and
showers – three per 100 detainees – is absolutely reasonable, considering the
fact that access to these six stalls is unlimited throughout the day. With respect to the claim regarding the
absence of books and games, the respondent informed us that the Red Cross
provides the detainees with both.
The
Second Hearing –
19. Upon receiving statements from both parties we
held a second hearing. The petitioners'
attorneys limited their claims to the physical conditions in which the
detainees were being held. They repeated
the claims that they had presented in their supplementary statement, while
complaining of the overcrowding and heat in the tents, the absence of dining
tables which causes the detainees to eat on the floor, the sleeping
difficulties, the insufficient quantity of clothing provided and the small
number of bathrooms and showers.
20. The respondent admitted that, in fact, when the
detentions first began, the detainees were not provided with minimal dentition
conditions. Nevertheless, within a
matter of days these were improved, such that Ofer Camp now operates reasonably
and satisfactorily. Five hundred and
eighty detainees currently reside in the eight detention divisions. Regarding the congestion in the tents, he
pointed out that each currently holds only fourteen detainees. There is a space of 45 centimeters between
each of the beds. Sustenance is provided
according to the IDF nourishment chart.
Detainees who desire are permitted to have their own food brought in by
visiting families. Every detainee is
supplied with three sets of clothing.
Some of the detainees prefer not to wear the military garments provided. They are permitted to wear their own
clothing, which is brought to them by their families. The respondent added that the Red Cross
regularly visits the facility, and that each detainee is free to speak with
them. Every detainee is entitled to meet
with his attorney who may lodge, in his name, concrete and specific complaints
regarding his condition.
The
Third Hearing –
21. During the third and final hearing in this
matter, the parties repeated their basic positions. The petitioners' attorney noted the difficult
situation that the detainees faced in the first stages of detention. He claims that even now the detainees’ rights
are being violated. The overcrowding
persists; the beds are unsuitable for sleeping; the bathrooms are
inappropriate; a number of the faucets are malfunctioning and the facility is
not equipped for the winter. In his
response brief the respondent noted that, in the first stages of detention,
“there was a big mess." In time,
the conditions have been improved and they now meet legal requirements. With regard to crowding, it was indicated
that the facility is designed to hold 1,100 persons, and it was now holds only
900 detainees. As such, overcrowding is
no longer an issue. The beds meet IDF
standards. The missing faucets were taken by the detainees themselves, and in
any case had already been repaired. The
facility is equipped for the winter, and the drainage problem has been solved.
The
Normative Framework
22. The detention conditions in the area are
primarily laid down by the Imprisonment Facility Operation (
23. These specific provisions are subject to the
general principles of customary international law. They are also subject to the directives
regarding detention conditions set out in the Geneva Convention Relative to the
Protection of Civilian Persons in Time of War-1949 [hereinafter, the Fourth
Geneva Convention]. As is well-known,
One should not infer from this that all
of the directives of the convention regarding the detention conditions of
administrative detainees must be followed blindly. Each and every directive should be examined
with regard to its significance, its indispensability, and its adjustment to
the special circumstances of the detention facility which is the subject of our
proceeding.
Sajadia, at 832. Furthermore, we do not deal here with the
imprisonment conditions of prisoners held in prisons. We are dealing with the detention conditions
of those being held in detention facilities in the area. These detainees were detained during warfare
in the area. According to the security
forces, the circumstances of the detentions are such that there is fear that
the detainees endanger or are liable to endanger the security of the area, the
security of IDF forces, or national security. See Order 1500 (the
definition of “detainee.")
24. The basic point of departure for our
discussion is the balancing point between the liberty of the individual and the
security of the public. On the one hand
are the rights of the individual who enjoys the presumption of innocence and
desires to live as he wishes. On the
other hand lies society’s need to defend itself against those who rise up
against it. Detention laws in general, and, more specifically, detention
conditions, reflect this balance. Here
we find the position that detainees should be treated humanely and in
recognition of their human dignity. This
is expressed in article 10 of the 1966 International Covenant on Civil and
Political Rights.
All persons deprived of their liberty
shall be treated with human dignity and with respect for the inherent dignity
of the human person.
See also the first principle of the Body of Principles for the Protection of All Persons
Under Any Form of Detention or Imprisonment, G.A. Res. 43/173,
U.N. GAOR, 43d Sess., Supp. No. 49, U.N. Doc. A/43/49 (1988).
Any person in
Darvish, at 538. Indeed, the nature of detention necessitates
the denial of liberty. Even so, this does not justify the violation of human
dignity. It is possible to detain
persons in a manner which preserves their human dignity, even as national
security and public safety are protected. Compare Yosef, at 573.
Prisoners should not be crammed like animals into inadequate spaces. Even those
suspected of terrorist activity of the worst kind are entitled to conditions of
detention which satisfy minimal standards of humane treatment and ensure basic
human necessities. How could we consider
ourselves civilized if we did not
guarantee civilized standards to those in our custody? Such is the duty of the commander of the area
under international law, and such is his duty under our administrative
law. Such is the duty of the Israeli
government, in accord with its fundamental character: Jewish, democratic and
humane. Compare Yosef, at 573.
25. In addition to these principles, we must
consider the principles and regulations set forth in the Fourth Geneva
Convention. Article 27 of the Fourth Geneva Convention sets out the point of
departure for the convention:
Protected persons are entitled, in all
circumstances, to respect for their persons, their honor, their family rights,
their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated,
and shall be protected especially against all acts of violence or threats
thereof against and against insults and public curiosity....
However, the Parties to the conflict may
take such measures of control and security in regard to protected persons as
may be necessary as a result of the war.
Alongside
this general directive, the Fourth Geneva Convention includes a number of
directives which refer to specific conditions of detention. We shall examine those directives which are
relevant to the petition before us, and which reflect the proper balance
between the right of detainees and the security needs of the area. These directives apply to persons in
“internment," meaning administrative detention. Apparently, these
directives do not apply directly to detentions for the purpose of
interrogation, though, indirectly, they do bear heavily on such
situations. Thus, there is no reason not
to refer to these directives in regard to the detention conditions before
us. Some of the detainees being held at
Ofer Camp, who are in the last stages of their detention, remain there on the
authority of an administrative detention order.
The aforementioned directives directly apply to those detainees. The Geneva Convention specifies that
detention conditions must preserve the health and personal hygiene of the
detainees, while protecting them from weather conditions. The detention facility should be properly lit
and heated, especially in the late afternoon and until curfew; the sleeping
areas should be sufficiently spacious and ventilated; and, in providing
bedding, the weather conditions, as well as the age, gender and health conditions
of the detainees, should be taken into account.
Detainees should be provided with clean and hygienically maintained
bathrooms. The detainees should receive
a sufficient supply of soap and water for laundry and daily bathing; they
should be provided with the necessary equipment to this end. Detainees shall have access to showers, as
well as sufficient time for bathing. See Fourth Geneva Convention, art.
85. Detainees shall receive daily
nourishment which is satisfactory in its quantity, quality and variety, such
that it preserves their health and prevents the development of illnesses which
originate in malnutrition; detainees shall be allowed to prepare their own
food; they shall be provided with a sufficient supply of drinking water. Fourth
Geneva Convention, art. 89. Detainees
shall be provided with sufficient changes of clothing, appropriate for the
weather conditions. Fourth Geneva Convention, art. 90. An infirmary supervised
by doctors shall be located in each detention area; detainees shall have
unlimited access to medical authorities. Fourth Geneva Convention, art.
91. Detainees shall undergo medical
inspections at least once a month. Fourth Geneva Convention, art. 92. The authorities will encourage learning and
educational activities. They will also
encourage the detainees to engage in sports and games. Sufficient space will be allotted for
sporting activities. Fourth Geneva Convention, art. 94. Any items taken from the detainee at the time
of his detention shall be returned to him upon his release. Family
identification and personal ID cards shall not be seized without providing the
detainee with a receipt. Detainees shall
never remain without identification. Fourth Geneva Convention, art. 97. The disciplinary order in the detention
facility must conform to the principles of humanity. The body and spirit of the detainees shall
not be harmed. Fourth Geneva Convention, art. 100. The minimal standards of
treating prisoners, which apply to all forms of detention, do not add
significant provisions on the matters relevant to this petition. It is sufficient to note the following
requirements: detainees require minimal space for sleeping, lighting and
heating. Fourth Geneva Convention, reg. 10. Each detainee shall have his own
bed. Fourth Geneva Convention, art. reg. 19. At least one hour of physical
activity shall be allowed. Fourth Geneva Convention, art. 21. A doctor from the
detention facility shall inspect the conditions of sanitation.
From
the General to the Specific
26. In order to implement these specific principles
and rules in this case, we must distinguish between the two stages of detention
the detainees went through. First, we
shall deal with the detention in the temporary facilities. This occurred during the first days of detention. The detainees were held at brigade
headquarters, which was not adequately prepared for so many detainees. These special circumstances should be taken
into account when examining whether the respondent maintained the necessary
detention conditions. In referring to
the issue of overcrowding in Sajadia, President Shamgar correctly
stated:
The existence of extreme crowding at the
beginning of the wave of detentions may be explained by the security need for
the simultaneous imprisonment of many people.
Sajadia, at 823. Nevertheless, even in such a situation,
everything must be done to preserve the minimal standards of detention
conditions. These standards were not
observed during the initial stages of detentions at the temporary facilities,
and this conduct violated the detention order, the international laws which
apply to the area and the fundamental principles of Israeli administrative
law. It will suffice to note several
blatant breaches of these standards: detainees’ hands were handcuffed in a
rough manner, which resulted in fierce pains and bruise marks; some of the
detainees were kept outside for hours, as many as forty-eight, not sheltered
from weather conditions and without sufficient access to bathrooms; their
possessions were taken from them without being documented. These conditions of detention can not be
justified, nor can other deviations from minimal standards be excused by the
need to accommodate so many detainees in such a short period of time. The
necessity was known in advance. It was
expected. Operation Defensive wall was
planned in advance. One of its goals was
to arrest as many suspected terrorists as possible. As such, the need for minimal detention
conditions was a natural result of the goals of the operation. There was no surprise in the matter. There was the possibility of preparing
appropriate divisions with suitable detention conditions. What was done a number of days after the
beginning of the operation should have been done several days before it
began. Indeed, security needs – which
must always be taken into account – did not justify the inadequacies in the
conditions of detention in the temporary facilities.
27. During the second phase, the detainees
relocated to Ofer Camp. During the first
days in which the detainees were received in Ofer Camp, some of the minimal
requirements regarding detention conditions were not fulfilled. As we have seen, at the beginning of
Operation Defensive Wall, Ofer Camp’s capacity was 450 detainees, with the
option of expanding to 700. In fact, a
much larger number of detainees were brought to the facility. The overcrowding was unbearable. A substantial number of detainees remained
unsheltered, exposed to the rigors of weather conditions. Not all of the detainees received a sufficient
supply of blankets. These circumstances
did not satisfy minimal standards of detention conditions, and had no security
justification.
28. Shortly after, Ofer Camp's entered a period of
routine operation, during which minimal requirements were satisfied. This was the situation when the respondent
first submitted his statement on 24.04.2002, and at the time of the first
hearing. Since then, additional
improvements have been made. The current
conditions essentially satisfy the minimal required conditions, and in some
cases, the conditions in Ofer Camp even exceed such minimal requirements. Such a state of affairs is appropriate: "minimal conditions" guarantee, as
their name suggests, only the necessary minimum.
Detention
Conditions and Judicial Review
29. This Court has always exercised wide-ranging
judicial review concerning conditions of imprisonment and detention. The Court has done so regarding Israeli
prisoners and detainees. It has done so
regarding prisoners and detainees from the area. In all of these cases, the Court thoroughly
investigated the arguments, even considering the smallest details of the
conditions of detention. Thus, for
example, Darvish dealt entirely with a security prisoner’s right to have
a bed in his cell. When necessary,
visits were arranged to the prison, see Yosef, or the detention
facility, see Sajadia. Even so,
our judicial review is not a substitute for constant review by the proper
authorities in the army itself. In Sajadia,
President Shamgar emphasized this with regard to Kziot Camp, which, like
Ofer Camp, holds many detainees from the area:
Considering the structure and function
of the Court, it cannot perform continual inspection and supervision; however,
constant inspection and proper supervision does allows for addressing and
examining issues that may arise in a facility which holds such a large number
of detainees. By determining procedures
of supervision, it becomes easier to strike the proper balance between
providing just and humane conditions, and the need to maintain internal order
and discipline and preserve safety and security
Sajadia, at 825. A similar problem now lies before us. During oral arguments, various suggestions
were made. It seems that we are
compelled to repeat the recommendation made in Sajadia by President
Shamgar, to which all the justices there – both Vice- President M. Elon as well
as Justice G. Bach – agreed:
As such, we find it appropriate to
direct the respondents' attention towards the need to determine efficient
manners of inspection and supervision. Our suggestion is that the respondent
consider nominating a permanent advisory committee, which will carry out
constant inspection and will report and advise the respondent on the matter of
the detention conditions in the Kziot detention facility. The head of the committee can be a senior
military judge from the military tribunal units, and the committee may consist
of experts from the fields of medicine, psychology, and jailing management.
Sajadia, at 825-26. Unfortunately, according to the
information we have received, it seems this suggestion has not been put into
action. We ask that this recommendation
be brought to the attention of the military's Chief of Staff. We are confident that he will act to ensure
its implementation.
30. Even more so: constant supervision and
inspection are not substitutes for detainee petitions and judicial review. These other options are available to
detainees in
Petition
Denied.
Justice D. Beinisch
I agree.
Justice I. Englard
I agree.
Petition Denied.
December 18, 2002