The Sde Teiman HCJ Judgment: Too Little, Too Late?

A recent judgment of the Israeli Supreme Court held that conditions in a notorious detention center must comply with Israeli law.

An airstrip at Sde Teiman (Photo: Amirber/WikiMedia Commons)

On Sept. 18, the Israeli Supreme Court, sitting as a High Court of Justice (HCJ), issued a short judgment in a petition brought by five leading Israeli human rights nongovernmental organizations (NGOs), including the Association for Civil Rights in Israel (ACRI), against the minister of defense, the military advocate general, and the attorney general. The judgment accepted the petition, which alleged that conditions of detention for Palestinians in Sde Teiman—a military base in southern Israel—violated Israeli law, and ordered the government to return to full compliance with its legal obligations. Whereas the final outcome appears at first glance to be almost trivial in nature—in a rule of law state, the government must always act in accordance with the law—the case is significant because it provides insight into how the Israeli legal system is dealing with some of the more sensitive, even shameful, aspects of Israel’s conduct relating to the war in Gaza. It also underscores the ability of civil society groups to use the law to effectuate change in governmental policy even during wartime. Still, the court’s record of achievement in this case is mixed. It did play a conducive role in ending the violations in Sde Teiman, but its involvement has been timid and incremental. Furthermore, even after the court’s involvement, questions relating to international supervision over detention conditions and criminal accountability for violations committed remain open.

Harsh Detention Conditions in Sde Teiman

Following the Oct. 7, 2023, massacre committed by Hamas militants and supporters inside Israel and the taking of more than 250 Israelis and foreign citizens as hostages to Gaza, the Israel Defense Forces (IDF) responded by opening a military operation aimed at repelling the invading forces, dismantling Hamas as a fighting force and a government authority inside the Gaza Strip, and returning home the Israeli hostages. In the course of this military operation, the IDF has detained thousands of persons suspected to be Hamas members, many of whom belong to the Nukhba commando units that conducted the raid on Israel. 

Given the unique security challenges posed by the detention of so many suspects for dangerous terror activity, the urgent need to interrogate some of them in order to obtain actionable intelligence, and the paucity of appropriate detention facilities inside Israel, the minister of defense decided on Oct. 8, a day after the attack on Israel, to use a military base in the south of Israel—Sde Teiman—as a temporary holding facility in which an initial process of registration, interrogation, and legal designation of new detainees would be undertaken. The minister’s decision was adopted pursuant to the 2002 Law on Incarceration of Unlawful Combatants (Unlawful Combatants Law), which serves as a principal legal basis for detaining inside Israel members of Hamas and other militant groups. Sde Teiman, which normally serves as an administrative center for different IDF units, was already used as a temporary detention facility during large-scale IDF military operations in the Gaza Strip in 2008-2009 and 2014. 

The number of Palestinians held in Sde Teiman has fluctuated since Oct. 7—whereas ACRI claimed in its petition to the court in May 2024 that it received information that it housed, at times, more than 1,000 detainees at once, it appears that at full capacity, it was designed to house at any given time up to 800 detainees in four separate detention compounds. The Palestinians held in Sde Teiman were detained on the aforementioned 2002 law, which was amended on Dec. 18, 2023, so as to facilitate longer detention periods during a war or a significant military operation, before detainees were allowed to meet lawyers and/or brought before a judge (physically or virtually). 

As indicated above, Sde Teiman was supposed to serve as a transit facility, holding detainees for a few days, in which they were to undergo initial interrogation and classification, before being released or transferred to a long-term detention facility or prison operated by the National Prison Service, a civilian authority that manages all incarceration and detention facilities in Israel. In practice, however, due to shortage in spaces available in regular prison facilities, many detainees remained in Sde Teiman for much longer periods of time than originally planned—despite its being clear that the facility was not suitable as a long-term maximum-security detention center. In fact, it was reported that the attorney general, Gali Baharav-Miara, complained to the prime minister that the Ministry of National Security, headed by Itamar Ben-Gvir, actively prevented practical solutions that would return Sde Teiman to its original purpose. The attorney general was probably implying that Ben-Gvir, the most extreme right-wing minister ever to serve in any Israeli government, deliberately blocked the transfer of the detainees to a more adequate detention facility so that he would be able to boast that he prevented them from receiving better treatment.

Since December 2023, a flow of Israeli and international news stories and NGO reports have sharply criticized the conditions of detention in Sde Teiman. For example, it was alleged that detainees were required to sit in one place in silence—handcuffed and blindfolded—for most hours of the day; that prolonged handcuffing resulted in some cases in injuries and even amputations; that the food provided to the detainees was inadequate; that medical treatment in the field hospital in Sde Teiman was substandard in quality and that detainees were restrained and maltreated throughout their hospitalization (including being compelled to wear diapers and be straw fed while tied to field hospital beds); that 35 detainees of the 4,000 or so detainees who had passed through the camp since Oct. 7 died there or in hospital facilities to which they were taken from the camp from a variety of causes (including inadequate medical treatment and mistreatment by IDF guards); that a number of detainees appear to have been sexually assaulted; and that no outside visits to the detainees by the International Committee of the Red Cross (ICRC) or other human rights monitors were allowed. International actors have endorsed these reports and raised their concerns with Israel and the general public. The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) published on April 16 a short report on conditions of detention of Palestinians inside Israel, including in Sde Teiman. On May 26, the UN Special Rapporteur on Torture, Alice Edwards, communicated her concerns about such detention conditions to the Israeli government and issued a statement in August condemning the alleged sexual assaults in Sde Teiman.

In response to these stark reports and the legal proceedings described below, the Israeli authorities have taken some legal measures: A committee of experts was established by the IDF chief of staff on May 28 to investigate the conditions of detention of suspected terrorists held by the IDF, which was headed by Ilan Schiff, a retired district court judge and a former military advocate general. The committee issued its findings to the IDF (which were not made public) in July. According to media reports, they included a recommendation to stop using Sde Teiman as a long-term detention facility. The Military Advocate General Corps stated that it opened 44 criminal investigations concerning the deaths of detainees held by the IDF. According to media reports, at least 35 of these investigations are regarding deaths that occurred in Sde Teiman or of detainees who were held in Sde Teiman and died in nearby civilian hospitals. In one case, IDF military police arrested 10 soldiers for their involvement in the alleged sexual assault and other forms of abuse of detainees. Finally, a U.K. team of monitors was reportedly invited to visit the Sde Teiman facility in lieu of the ICRC. 

Developments During Litigation

On May 23, a group of Israeli human rights NGOs, led by ACRI—the most prominent human rights NGO in the country—filed a petition with the Israeli Supreme Court sitting as an HCJ (an administrative court of first and last instance). The petitioners claimed that conditions in Sde Teiman constitute systematic and wide-ranging violations by the state of the requirements of the Unlawful Combatants Law and the 2002 regulations enacted pursuant to it, which deal with the conditions under which detainees are to be held. The petitioners further claimed that holding detainees under such conditions violates the constitutional right to liberty, entrenched in Israel’s Basic Law: Human Dignity and Liberty, and rules of customary international law regarding the holding of detainees.

The petitioners also hinted that the extremely harsh conditions at the Sde Teiman facility were imposed by the state as retribution for the gruesome Oct. 7 attack, in which many of the detainees participated. Indeed, Israeli media outlets gave expression to a popular public sentiment comparing the conditions of the detainees to those of the Israeli hostages held by Hamas in the Gaza strip. The petitioners suggested that, because of this public sentiment, the state held the detainees in a “black hole” outside the rule of law. The petitioners therefore concluded that the entire operation of the Sde Teiman facility as a detention center is done outside the law. They therefore requested that the court order its closure. 

The court set a hearing in the petition for June 5, 2024. It seems that the imminent hearing date set the wheels in motion on the state side. In its initial response, the government accepted the basic premise of the petitioners that the Sde Teiman facility operates under the Unlawful Combatants Law and that it was designed to serve merely as a transit facility and was therefore not fit for the purpose of serving as a long-term detention center for a large number of detainees. The state announced that it has taken some steps to change the situation, some of which were allegedly adopted before the petition was submitted. These included the transfer of 500 detainees from Sde Teiman to a permanent and built-for-purpose facility in the West Bank (Ofer Camp), finalization of plans for the removal of the remaining 200 detainees to other suitable detention facilities, works to improve physical conditions in Sde Teiman, and the establishment of the aforementioned expert committee. The state also noted that it is considering introducing certain changes into the Unlawful Combatants Law and Regulations. The court asked the state to update it within five days about any decision taken relating to the 200 detainees for which a detention facility has not yet been found.

On June 11, the state lawyers updated the court that 190 detainees remained in Sde Teiman and that it found solutions (release or replacement) for 75 detainees. It was planning to complete the process of restoring Sde Teiman to its original use by the end of the month. On June 23, the court asked the state for another update (by June 30) in which they were instructed to address the different legal claims made by the petitioners concerning the failure to implement the 2002 regulations. The state asked for a number of extensions, eventually submitting short updates to the court on July 8 and 18, and its full response to the petition on Aug. 5, reporting that only 28 detainees remain held in Sde Teiman. 

In the interim, in a July 11 meeting of the Israeli Security Cabinet, Prime Minister Benjamin Netanyahu issued a directive (cited in para 12 of the judgment), requiring the IDF and the Prison Service to find a solution that would allow the immediate transfer of any detainee held more than 14 days in Sde Teiman to permanent detention facilities—effectively bypassing the objections of the national security minister. In addition, on July 30 the Knesset amended the Unlawful Combatants Law, extending, as a temporary measure, some of the external monitoring arrangements existing in Israeli prisons to military detention centers, including Sde Teiman. Finally, on July 15, the HCJ issued an order nisi (a conditional order requiring the state to defend the challenged measure or policy), noting that in view of the length of time that had passed since the petition was filed, it requires the state to explain why the court should not suspend the operation of the Sde Teiman detention facility unless it meets the legal requirement specified in the 2002 law and regulations. Under Israeli administrative law, the effect of such an order is to reverse the burden of proof and transfer it from the shoulders of the petitioners to the state respondents. 

The final hearing took place on Aug. 7. By then, the issue had attracted significant public attention. The hearing was broadcast live on the court’s internet page, and the courtroom was packed with spectators, many of them right-wing activists and family members of Israeli hostages in Gaza, who protested the court’s willingness to review the detention conditions of members of Hamas and continuously interrupted the proceedings. The state’s lawyers claimed that the process of transferring detainees from Sde Teiman was almost complete, as were building works in the camp that would allow holding detainees in permanent as opposed to makeshift structures, dubbed by the petitioners as “cages.” The only major point of contention between the petitioners and the state remained the opaque statement by the latter that it is implementing the “nucleus of its obligations” under the 2002 law. Although the state did not purport to justify the violation of any specific legal condition, it seems that it wished to preserve for itself flexibility regarding the manner of implementation of its specific obligations. 

Although the petitioners still insisted in the hearing on the complete closure of the Sde Teiman facility, it was clear from the judges’ questions that they were not convinced that such a measure was legally required. They seemed to have been persuaded by the state’s claims regarding the real need for a short-term sorting facility, in which initial interrogations would be conducted (resulting in many cases in the release of detainees who had no military involvement or value); hence, the judges focused their questions during the hearing on the actual conditions in the detention facility. 

The Court’s Decision

The court’s judgment was delivered by its acting president, Justice Uzi Vogelman, and his opinion should be read in light of the above-described procedural history. The most important requests found in the May petition regarding the detention conditions in Sde Teiman were effectively already granted by the state in the course of litigation. In fact, it appears that the petition set in motion a process resulting in termination of the most egregious violations of human rights in the Sde Teiman detention facility. What’s more, by September, Sde Teiman was no longer serving as a long-term detention facility, and only a small number of detainees remained in it. 

What remained for Justice Vogelman was to underscore two normative points: First, that the state must act according to the laws governing detention as they currently stand. The fact that the state has plans to change the 2002 law or regulations (a claim that the state included in its submissions) does not affect its current legal obligations. In other words, the rule of law—as it currently stands—must be observed. And any legal change would need to be evaluated under constitutional and administrative law. Vogelman also stressed that any such change would be required to comply with international humanitarian law, especially as Article 1 of the Unlawful Combatants Law expressly states that it is designed to regulate the incarceration of unlawful combatants, who are not entitled to the status of prisoners of war, in a way that is consistent with the obligations of the State of Israel according to the provisions of international humanitarian law. 

The second related point is that the state has no flexibility in determining whether or not it is obliged to follow the applicable law. Holding detainees, even in the midst of a brutal war, must be done in accordance with the law, and the intensive military operations taking place in the Gaza Strip do not in any way dilute the legal obligations of the state. There is therefore no valid distinction between “nucleus obligations” and other legal obligations. This last point was also emphasized by Justice Daphne Barak-Erez in her concurring opinion. Barak-Erez stressed that the core of the judgment is that “what has been will no longer be.” Not in Sde Teiman and not in any other detention facilityis the state allowed to hold any detainee in violation of the law. As trivial as these statements about the rule of law might seem at first glance, they are certainly not so in the current climate in Israel. In the current atmosphere, some parts of the Israeli public are highly critical of the need to respect the law to the letter in a time perceived by many in Israel as an existential struggle against an enemy that does not see itself bound by any rule of law. 

Two important points were not dealt with directly by the judgment, however. First is the issue of ICRC visits to Sde Teiman. The IDF has not allowed the ICRC to visit detention facilities since Oct. 7, 2023 (one reason invoked by Israeli officials for the policy is the lack of ICRC access to the hostages held by Hamas). This issue is currently before the court in a different set of proceedings following a petition submitted by ACRI on Feb. 22. On Aug. 25, the court issued an order nisi in this case too. The state would now be required to establish the legality of its ICRC visits ban. 

The second issue the judgment did not deal with are the criminal investigations currently taking place with regard to the alleged violations that took place in Sde Teiman in recent months. These investigations have generated strong opposition in some parts of Israeli society. In one notable incident (which occurred on July 30), protesters led by right-wing members of the Knesset broke into Sde Teiman in an attempt to free several Israeli soldiers held there by IDF military police on suspicion of torturing a detainee. In fact, nowhere in the judgment did the court explicitly state that legal violations took place at the Sde Teiman facility (perhaps so as not to affect ongoing criminal investigations). These issues will certainly continue to be at the center of public attention in Israel and beyond in the near future. 

Wider Implications

While the court’s judgment is remarkable in being unremarkable—merely reaffirming the duty of state authorities, including the IDF, to comply with Israeli law, including during armed conflict—it does raise some wider issues that require further reflection. 

The “Nanny Court”

In this case, the court, in effect, facilitated and supervised the significant, yet incremental changes introduced in the Sde Teiman detention facility and issued its judgment only after it became clear to the court that the situation on the ground in fact changed significantly. The HCJ has used this “nanny court” policy—of supervising over time changes in policy while a case is pending—in several cases in the past, including in cases relating to rights of prisoners. Yet it seems that in recent years the policy fell out of favor with the court, not least because of the growing criticism of the court’s interventionist attitude, and the claims that it was interfering in matters that the executive branch should deal with. It seems that the Sde Teiman decision does not necessarily signify a change in the general direction of the court. Rather, the judgment was given in response to a specific situation in which certain branches of the Israeli government, under the guise of the war, were acting in clear contradiction to the law. In regular times, it would have perhaps been enough for the attorney general or military advocate general to intervene in the situation in Sde Teiman once allegations of mistreatment started to be made. Yet in the context of the war, and given the current composition of the Israeli government, the prime minister’s personal intervention was required, and Netanyahu lacked time, attention or political will to do it without the shadow of an impending court decision. 

ICRC Visits

In our minds, one of the “original sins” in this case was the decision to exclude Sde Teiman from the duty stipulated in the Unlawful Combatants Regulations to allow visits by the ICRC. While the regulations arguably allow the minister of defense to suspend such visits (a decision now litigated before the court), the events in Sde Teiman highlight the internal justification for ICRC visits. The justification for ICRC visits, and indeed for any external oversight of detention practices, is not just international law or international legitimacy (we note in this regard that the U.K. partly motivated its decision to limit weapons exports to Israel on detention conditions inside Israel). It also allows the Israeli government to obtain knowledge about and exercise control over detention facilities, and it prevents renegade behavior that might pass under the radar due to the fog of war. It seems to us that were ICRC visits allowed to begin with, few if any of the shameful events that allegedly took place at Sde Teiman would have taken place, and violations would have been stopped and dealt with much earlier. If there exists some specific reason to avoid ICRC visits—a contingency that we find difficult to accept—some other international oversight mechanism should have been put in place immediately. Indeed, at a later date this is exactly what was done. A U.K. team was invited to visit Sde Teiman, and an internal Israeli committee of experts was formed. All of these could have taken place much earlier. 

Finally, the court seems to have signaled to the Israeli authorities that the period in which they could claim that the war prevents them from abiding by the letter of the law is over. To paraphrase U.S. Supreme Court Justice Neil Gorsuch’s 2020 quip regarding the coronavirus pandemic: “Even if the Constitution has taken a holiday during the war, it cannot become a sabbatical.” The rule of law must be preserved. This is especially important not only because of Israeli rule of law consideration but also because of Israel’s precarious international situation and the extent of external scrutiny it is subject to. Still, even at the end of the “holiday”, the court’s reaction appears to be timid—focusing on legality from now onward, and deferring for a later day a discussion of accountability for serious violations of Israeli law and international law that appear to have taken place in Sde Teiman.

 

This article was published in LawFare.