Restraining Orders Should Alarm Settlers

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In an op-ed originally published in The Jerusalem Post on January 11, 2012, IDI Vice President Prof. Mordechai Kremnitzer and Attorney Lina Saba discuss the administrative restraining orders recently issued against 12 Jewish activists involved in "price tag" activity in Judea and Samaria. What is the legal basis for using these measures and what are the implications of their use?

Maj.-Gen. Avi Mizrahi's administrative restraining orders against 12 right-wing activists bar them from Judea and Samaria for periods ranging from three to nine months. These orders were issued at the recommendation of the Israel Security Agency (Shin Bet).

According to the IDF statement, the Central Command's orders were issued based on information recently gathered by the ISA, which indicated that "the group of extremists has been involved in leading, directing and executing violent and clandestine activity targeting Palestinian residents of Judea and Samaria and security forces operating in the area, therefore endangering lives and disrupting public order."

The legal basis for issuing these orders is not Israeli law but rather military law, which applies to Judea and Samaria as a result of the IDF's control of these areas, and on international law. The international law that applies to territories under military occupation specifically allows administrative detention.

According to the regulation pertaining to security provisions, a military commander who believes that a restraining order is necessary on compelling security grounds is authorized to issue an order removing a person from a particular area. This regulation does not require the commander to conduct a preliminary procedure, nor does it require him to give the suspect an opportunity to be heard.

The order may be appealed to a committee appointed by the President of the Military Court of Appeals. This committee may deviate from the rules of evidence and is also not bound by the rules of procedure. For security reasons, it is also entitled to accept evidence while preventing the restrained person and his legal representative from examining the evidence.

There is no doubt that there is immediate and critical need to enforce the law in the territories and to prevent violence against Palestinians and against Israeli security forces. The question, however, is what measures are appropriate for achieving this important goal, since the end does not justify all means.

There is no doubt that the proper way of dealing with lawbreakers is through the criminal process, since criminal procedures guarantee that the suspect's right to due process will be protected, and allows sanctions against people only after they have been proven guilty of a crime beyond a reasonable doubt.

Administrative measures, in contrast, are taken on the basis of the provisions of the executive branch without criminal charges being filed, without trial and without judicial decision. They are also generally imposed under a heavy veil of secrecy, such that suspects are not able to deal with the alleged evidence against them and defend themselves against the allegations against them. This situation violates the right to due process and the human dignity of the suspects. It also does not allow a thorough examination of the allegations.

Administrative measures are ostensibly preventive measures directed toward the future, while criminal proceedings are conducted for acts done in the past. In fact, what generally leads to the imposition of administrative measures is difficultly in proving that a criminal offense was committed, usually because of secret evidence.

If we examine the long-standing reality in Judea and Samaria, it is hard to avoid the conclusion that there has been an ongoing failure to enforce the law when crimes have been committed by Jews in the occupied territories. Against this background, it is difficult to accept the use of administrative measures, unless it is as a temporary measure that will be in effect only until the root of this failure can be addressed and it is possible to conduct criminal proceedings in such cases.

The type of evidence that is admissible is also not the will of heaven; rather, it is controlled by humans. In a situation in which there is no "arrangement" of restraining orders or administrative detention, the system would probably recruit and handle agents in a manner that would allow agents to be exposed by being brought as witnesses. Information that is inadmissible intelligence information at an early stage of the process should serve as the point of departure for an investigation that will yield admissible evidence.

The existence of administrative measures makes life easy for the law enforcement system and creates a disincentive to develop measures that might make administrative measures unnecessary. It is not appropriate, and it is not fair, but it is easy.

In the exceptional cases in which it is not possible to use the standard methods of law enforcement, the authorities must employ the measure that violates human rights the least while still achieving the desired goal. Thus, for example, if it's possible to deal with the danger posed by a suspect by putting him under surveillance, that measure should be adopted.

Although serving a restraining order is less severe than incarcerating a suspect (administrative detention), it involves a serious blow to the rights of the person who is being removed and a fatal blow to the right to due process.

In order to lessen the impact of restraining orders in cases where there is no recourse but to issue them, a number of changes to the existing law are necessary:

  1. A hearing must be held so that the suspect can defend himself.

  2. The suspect must be allowed to be assisted by a lawyer who is acceptable to the security authorities, who will have access to the secret evidence.

  3. The duration of the restraining order should not exceed what is required by the specific circumstances.

When considering these steps, we must remember that the Palestinians in the territories are living under a regime that employs measures far more extreme than the restraining orders in question, such as administrative detention that can continue for months and even years without trial. According to the B'tselem organization, as of November 2011, approximately 280 Palestinians were being held in administrative detention.

The administrative restraining orders that were imposed on 12 Jewish suspects serve as an impetus for the Jewish public to consider—as an expression of concern—the measures that are being taken by our governmental authorities as a matter of course against Palestinian residents. Anyone who believes that such measures are illegitimate or at least problematic when imposed upon Jews will be hard pressed to justify their imposition on Palestinians. Applying them only to Palestinians is not acceptable according to the rule of law. 

This article was originally published in The Jerusalem Post on January 11, 2012 and has been used with permission. It can be read in the original here.

Prof. Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute and a Professor Emeritus at the Hebrew University of Jerusalem Faculty of Law. Lina Saba is a research assistant at the Israel Democracy Institute.