¹ H.C.J. 3278/02, Center for Defense of the Individual v. IDF Commander in the West Bank, 57(1) P.D. 385 [in Hebrew] (Full text English translation available at http://62.90.71.124/eng/verdict/framesetSrch.html).

² H.C.J. 5591/02, Yassin v. Commander of Kziot Military Camp, 57(1) P.D. 403 [in Hebrew] (Full text English translation available at http://62.90.71.124/eng/verdict/framesetSrch.html).

³ H.C.J 3728/02, supra n. 1, at 389

⁴ Kretzmer, David, The Occupation of Justice – The Supreme Court of Israel and the Occupied Territories (N.Y., State University of New York Press, 2002) 19Google Scholar.

⁵ “In the first reported decision dealing with the legality of actions taken by the military authorities in the Occupied Territories, the Christian Society case, [H.C.J. 337/71 Christian Society for the Holy Places v. Minister of Defense, 26(1) P.D. 574] the jurisdiction question was not even mentioned by the Court.” – Kretzmer, ibid. 20.

⁶ Opinion of Justice Landau in Khelou v. Government of Israel, 27(2) P.D. 169, 176. This approach was further adopted by the Court in Ja'amait Ascan v. IDF Commander in Judea and Samaria, 37(4) P.D. 785, 809. – From, Kretzmer, supra n. 4, at 20–21.

⁷ See H.C.J 7015/02 Ajuri v. IDF Commander in Judea and Samaria, 56(6) P.D. 352 [in Hebrew]; H.C.J 3114/02 Barake v. Minister of Defense, 56(3) P.D. 11 [in Hebrew]; and H.C.J 8990/02 Physicians for Human Rights v. OC Southern Command, 57(4) P.D. 193 [in Hebrew].

⁸ This was due to the special request made by the petitioners to visit the detention facility in question – Ofer Camp, observe the conditions under which the detainees were being held in detention and converse with them. They desired to receive a first-hand impression of the conditions under which the detainees were being held, See H.C.J 3728/02, supra n. 1, at 390.

⁹ The petitioners were the Center for the Defense of the Individual, Adalah – The Legal Center for Arab Minority Rights in Israel, the Association for Civil Rights in Israel, B'tselem – The Israeli Information Center of Human Rights in the Occupied Territories, Kanon – The Palestinian Organization for the Protection of Human and Environmental Rights, Addameer – Prison Support and Human Rights Association and Alhak – The Law in Service of Human Rights. See H.C.J 3728/02, supra n. 1, at 385.

¹⁰ The respondent initially objected but finally conceded to allow the visit, ex gratia, asserting that there were no legal grounds for such a visit. However, he was adamant that the petitioners' representatives not be permitted to meet with detainees' in the camp. He emphasized that the representatives could meet with the detainees' attorneys who were in constant contact with the detainees. He also noted that one of the representatives requesting to personally meet with the detainees had been charged with disruption of legal proceeding for relaying messages illegally. The Court decided that visit would take place, leaving the decision regarding personal meetings to the discretion of the military personnel accompanying the visit. The respondent informed the Court that despite this agreement, during the visit, which took place on 22.05.2002, the petitioners' representative took the liberty of speaking with the detainees at will. See H.C.J 3728/02, supra n. 1, at 393–394.

¹¹ The relevant acts were different: while in Ofer the Court referred to the specific provisions established in the Imprisonment Facility Operation (West Bank) (Order 29) – 1967 which applies to conditions of imprisonment in the territories (See H.C.J 3728/02, Supra n. 1, at 395), in Kziot, the Court referred to provisions of the Detention Regulations regulated on the authority of the Emergency Powers Law (Detention) – 1979, which apply to administrative detention and section 9(a) of the Criminal Procedure (Enforcement Authority-Detention) Law – 1996, which applies to regular detention (See H.C.J. 5591/02, supra n. 2, at 410–412).

¹² H.C.J. 5591/02, supra, 410. President Barak, who wrote the opinion of the Court in both these judgments, explicitly stated in Ofer: “Even those suspected of terrorist activity of the worst kind are entitled to conditions of detention which satisfy minimal standards of humane treatment and ensure basic human necessities. We would not be human ourselves if we did not guarantee a standard of humanity to those within our custody. Such is the duty of the commander of the territories in accordance with international law, and such is his duty in accordance with the foundations of our administrative law. Such is the duty of the Israeli governance in accordance with its essential character – Jewish, democratic and humane” (See H.C.J 3728/02, supra n. 1, at 401).

¹³ H.C.J. 221/80 Darvish v. The Prison Service, 35(1) P.D. 536; H.C.J. 253/88 Sajadia v. Minister of Defense, 42(3) P.D. 801, as cited in the judgments; See H.C.J 3728/02, supra n. 1, at 401 and H.C.J. 5591/02, supra n. 2, at 417. Based on these rulings the Court declared, “Not only should detention conditions of the administrative detainees not fall short of those of convicted prisoners, but rather, everything should be done in order to ensure that their conditions surpass those provided to the prisoners. Such is the case since the presumption of innocence stands in their cases.” See H.C.J 3728/02, supra n. 1, at 397 and H.C.J. 5591/02, supra n. 2, at 410.

¹⁴ “Operation Defensive Shield was planned in advance. One of its goals was to arrest as many suspected terrorists as possible. As such, the need for minimal detention conditions was an inherent requirement of the goals of the operation. There was no surprise in the matter. There existed the possibility of preparing an area with suitable detention conditions. What was done in a number of days after the beginning of the operation should have been done before its start.” H.C.J 3728/02, supra n. 1, at 399. A similar statement may be found in H.C.J. 5591/02, supra n. 2, at 415.

¹⁵ The judgments at hand are substantially simplified by the finding that the discussed violations were not necessary to the military operation. Had the Court found that the military lacked sufficient time to prepare for the operation, and that factually, the discussed violations would have been necessary in order to carry out Operation Defensive Wall, it is questionable whether the Court's intervention would have been appropriate. Interference with the military's discretion whether or not to carry out a security operation (even where human rights are involved) is extremely problematic.

¹⁶ Both judgments include statements which attest to the temporal nature of the human rights violations: “Shortly after, Ofer Camp's activities became routine, satisfying minimal requirements… The current conditions basically satisfy the minimal conditions required, and in some cases, the conditions in Ofer Camp even exceed them…” See H.C.J 3728/02, supra n. 1, at 400–401. In Kziot, the Court similarly found: “In time, the conditions were improved upon while the necessary minimal standards were satisfied. In certain matters, the conditions exceed minimal standards.” See H.C.J. 5591/02, supra n. 2, at 415.

¹⁷ In each of the cases, it found a number of problematic issues which had up to that point remained unresolved – such as the height of the beds (See H.C.J. 5591/02, supra n. 2, 416–417) and the lack of dining tables (See H.C.J 3728/02, supra n. 1, at 400–401) – and called for their investigation and resolution.

¹⁸ Dotan, Yoav, “Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the Intifada”, (1999) 33 (2) Law and Society Review 319, at 325CrossRefGoogle Scholar.

¹⁹ For example, H.C.J 680/88 Shnitzer v. Military Censor, 42(4) P.D. 617. See also, Dotan, ibid, 324–326.

²⁰ The problem thus becomes how to prevent the initial violation (if in fact it is legally unjustified), and not how to condemn it ex post, a matter which is not within the power of the High Court of Justice.

²¹ H.C.J. 253/88, supra n. 13, at 825.

²² H.C.J. 3278/02, supra n. 1, at 401–402.