On September 18, 2024, the High Court of Justice determined that the detention in the Sde Teiman detention facility of persons from Gaza suspected of terrorism and hostile activities must fully comply with the requirements of the Detention of Unlawful Combatants Law, 5762-2002, as amended (IUCL), and the IUCL (Conditions of Detention) Regulations 5762-2002 (IUCL regulations).
The court declined to close the facility, but stated that its continued operation was conditional upon compliance with the law. (HCJ 4268/24 Association of Civil Rights in Israel v. Minister of Defense, State of Israel: Judicial Authority (Sep. 18, 2024).)
Background
Article 1 of the IUCL states that it is intended to regulate the imprisonment of unlawful combatants “in a manner consistent with the obligations of the State of Israel under international humanitarian law.” Section 10(a) of the IUCL provides that detainees shall be held in appropriate conditions that will not harm their health and dignity. Section 10(b) provides that conditions of imprisonment will be subject to regulation. The IUCL regulations address detainees’ rights to food, medical services, sleep arrangements, hygienic conditions, outdoor walks, and visitors, including representatives from the International Red Cross.
The Sde Teiman military base in the Negev desert was declared a detention facility in accordance with the IUCL on October 8, 2023, the day after the Gaza war began, and the declaration has been extended periodically since then. The facility was intended to serve as a reception, interrogation, and preliminary screening facility for prisoners captured in the war for a limited time, before their transfer to the Israel Prison Service or release back to the Gaza Strip.
Petitioners brought suit, arguing the State has systematically and continuously violated the prison conditions guaranteed in the IUCL and the IUCL regulations, harming detainees’ lives and bodily integrity. Petitioners alleged that that the detainees had been deprived of adequate food when they were fed blindfolded and handcuffed, that they had been physically punished, and that the medical care provided was inadequate.
In response, the State argued that it has been necessary for detainees to be held in the facility for longer than the original purpose of their incarceration because of the unprecedented number of persons detained during the war and the shortage in prison facilities. The State said it had been taking steps to transfer detainees to another facility, and to improve the infrastructure at the Sde Teiman facility, including its medical facility. It argued it had complied with the main requirements of the regulations, including not carrying out physical punishment in the facility, photographing the facility’s compounds regularly, and maintaining hygiene conditions. Regarding handcuffing, the State said an updated directive provides that after 96 hours, detainees must be held without restraints unless there is specific justification for doing so.
Decision
Acting Court President Uzi Vogelman’s ruling stated that the IUCL and IUCL regulations provide the normative framework governing detention of inmates in Sde Teiman. Vogelman rejected the State’s claims that if there were gaps in implementing the regulations at Sde Teiman, the failures did not implicate the regulations’ core protections. Vogelman wrote that the State does not get to decide “which provisions of the law it is obligated to comply with and which it is not.” (HCJ 4268/24 para. 22-23.)
Vogelman recognized that the 11-month war has posed many challenges to the State, including with respect to detaining large numbers of prisoners, but he emphasized “that in these days of a difficult war, the State must act within the framework of the law.” He noted the Supreme Court’s statement that “even when the cannons thunder and the muses are silent, the law exists and operates and determines what is permissible and what is forbidden, what is legal and what is illegal.” (Para. 24.)
But Vogelman observed that since the filing of the petition, the conditions in the facility had changed significantly, both with respect to the number of inmates and the infrastructure. He said the Court was not deciding this case based on the serious factual allegations raised in the petition, and assumed that such allegations would be discussed by other review mechanisms, including relevant criminal investigations. He concluded,
[t]he conditional order, which delimits the hearing of the petition, relates to the principled legal determination that the continued operation of the facility is conditional on compliance with the provisions of the law. At this point in time, considering the principal wording of the conditional order, the developments presented by the State throughout the procedure … and the relief granted, the hearing on the petition has been exhausted. To the extent that claims arise in the future that the new operating pattern of the facility also deviates from the provisions of the law, the rights of the petitioners, as well as the claims of the respondents, are reserved to them. (Para. 26.)
Concurring with Vogelman, Justice Daphne Barak-Erez said that she recognized the challenges associated with the detention of suspected terrorists during these “difficult and bitter days of war, and more so when our brothers and sisters languish in cruel captivity in the Gaza Strip. However, unlike terrorist organizations, the State of Israel is a state of law, and this too is its power.”
Ruth Levush, Law Library of Congress
September 23, 2024
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