Iad Ashak Mahmud Marab v. The Commander of IDF Forces in the West Bank

HCJ 3239/02 Iad Ashak Mahmud Marab v. The Commander of IDF Forces in the West Bank (2002)

Jurdiction : Cour suprême d’Israël siégeant en tant que High Court

Voir pages 108 à 140 du document.

The military commander issued Order 1500 during the “Defensive Shield military operation which led to the detention of a large number of people. According to this order, a suspect could be detained for up to 18 days without appearing before a military judge. It also established that during this period of detention he would be denied legal counsel. Later the order was amended and the number of days allowed to pass without judicial review was reduced to 12 and without legal counsel to four days from the date of detention. Nevertheless, the detainee could still be held for eight days without any investigation into his suspected crimes. 

The Court ruled that the military commander is authorized to issue orders for the detention of people believed to pose a security threat. However, the exercise of this authority must reflect the balance between human rights and security needs. Every detainee must be suspected of activities that endanger security, otherwise there is a situation of arbitrary detentions that are illegal under international law. Judicial review is an important part of the exercise of the authority to hold suspects, since it prevents arbitrary detentions. The Court was prepared to take into account the unusual circumstances of the detentions in a military operation such as “Defensive Shield”. Obviously it was not possible to conduct judicial hearings immediately due to the sheer number of detainees. Nevertheless, the postponement of judicial review for 12 days remains illegal. In light of these conclusions the Court struck down Order 1500 and its amendments as issued by the military commander, but delayed the enforcement of the ruling in order to allow the security forces to deal with the ramifications.

Ce contenu a été mis à jour le 25 mars 2016 à 10 h 53 min.