In a unanimous decision, Justices Elyakim Rubinstein, Yoram Danziger and Noam
Sohlberg said they found no reason to contravene a military court ruling that
extended two Palestinian prisoners’ detention.
Rubinstein said that a
hunger strike by Bilal Diab and Thaer Halahleh should not be the single factor
in a military court’s imposition or extension of administrative detention –
detainment of alleged terrorists without trying them in court.
But he
criticized the security authorities for holding the detainees without a proper
interrogation that includes certain issues preceding the
arrest.
Rubinstein added that the time frame for administrative
detentions should be shorter in order to facilitate more frequent judicial
review.
Halahleh has been in administrative detention since June 28,
2010. The military court extended his imprisonment for a further three months
until February 27.
Diab has been in administrative detention since August
16, 2011, which the military court extended by six months until February 7. Diab
is currently hospitalized in the Assaf Harofeh hospital, where he is conscious
but refuses to ingest fluids, the court stated.
Defense attorneys Jawad
Boulos and Jamil Khatib said in the High Court petition that administrative
detention is a draconian measure.
They added that the state refuses to
grant access to intelligence material on the detainees, prevents them from
formulating a proper defense in military court hearing.
In Monday’s
ruling, Rubinstein said that revealing classified intelligence material about an
administrative detainee could harm the agents and their methodology.
It
was right, therefore, that the courts should be the body designated to examine
that material, he said.
However, the justice added on a cautious note
that perhaps a ‘trusted’ lawyer with a security clearance could double- check
the classified material.
Such a lawyer would be a retired judge or senior
public servant, Rubinstein said.
In the ruling, the justices said that
classified information and military court rulings on the prisoners proved that
they were active in terrorist group, Islamic Jihad.
In Halahleh’s case,
the court stated that he served jail time for previous security
offenses.
The security services – who presented the classified material
to the military court – said that Halahleh is accused of transferring funds,
including from overseas, to finance the terrorist group’s
activities.
Military judges chose to extend Halahleh’s detention since he
posed a real security threat, Rubinstein said.
A separate military court
ruling on April 23 said that Halahleh’s hunger strike did not affect its
detention assessment.
“It could be estimated with a high degree of
certainty that, if released, he would endanger regional security,” the decision
said.
For that reason the court decided that there was “no reason to
intervene in the current extension” of Halahleh’s administrative
detention.
In Halahleh’s petition, attorney Khatib argued that the
authorities did not consider the duration of detention and criticized the lack
of additional investigations.
But in the ruling, the justices noted that
Halahleh was in administrative detention for nearly two years.
“Even
regardless of the hunger strike, this justifies a senior-level discussion on the
matter about whether to request another extension [to the detention] or whether
there are better alternatives,” Rubinstein wrote.
If the authorities
deemed that extending Halahleh’s administrative detention was warranted,
Rubinstein said, they must undertake a “more serious” interrogation into his
case.
The state alleges that the second prisoner, Diab, is an active
member of Islamic Jihad, and was a senior leader in the terror group, with ties
to Gaza and overseas – assisting the organization’s funding, the justices
said.
Diab was imprisoned from 2003-2010 for separate security offenses,
the state noted.
Classified information presented to the court indicated
that Diab had access to weaponry and showed “a willingness for military
action.”
In its ruling to extend Diab’s detention, the military court
said his activities were “a dangerous part of a radical terror
group.”
The court found that Diab’s hunger strike did not justify a
release from administrative detention.
However, Rubinstein criticized the
fact that the security services failed to interrogate Diab about his alleged
access to weaponry.
“We believe, regardless of the hunger strike, that in
the face of the intelligence gathered after Diab’s arrest, he should be
interrogated on this issue, as far as his medical situation allows,” Rubinstein
said.
The justices added that, in their opinion – since Diab is suspected
of terror financing – administrative detention should be for periods shorter
than six months, to allow greater judicial review and oversight.
Despite
the petitioners’ medical situation, Rubinstein recommended a review of the
Conditional Release Law, although it does not apply in this case. The law says a
prisoner may be released on conditional bail if his continue stay in prison
poses a mortal danger.
In response to the court’s decision, defense
lawyer Boulos said that on the margins of their ruling, the High Court justices
had “dealt for the first time with the issue of the provisions of administrative
detention, particularly with respect to classified material and prisoners’
medical conditions.”
Physicians for Human Rights, who treated the two
petitioners, slammed the ruling, calling it “the effective equivalent of handing
down a death sentence.” The human rights group said there are 320 Palestinians
held in administrative detention.
“The judges are tightening their hold
on administrative detainees, which, due to the absence of concrete evidence, the
inability of the detainee to defend himself in court and the unlimited renewal
of his/her detention term, constitutes a full negation of liberties and human
freedom,” a spokesman for the group said.
Later on Thursday, Islamic
Jihad threatened that Israel would “bear the full consequences” of the court
ruling, dubbing it “a decision to execute the two prisoners, after the enemy’s
frantic efforts to break their resolve and end their heroic battle", according
to the Gaza-based Felesteen news site.